Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedent: (a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex. (b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement. (c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion. (d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request. (e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Incremental Term Loan Assumption Agreement (Terex Corp)
Conditions Precedent. The 4.1 Notwithstanding anything contained in this Amendment or the other Loan Document Amendments to the contrary, the obligation of the Incremental Lenders Lender to make Incremental Term Loans hereunder shall be subject to advance that the additional $2,000,000.00 of the November 1996 Loan or any part thereof is expressly contingent on the fulfillment and/or satisfaction in the sole discretion of the Lender of the following conditions precedent and the receipt by the Lender (in form and substance satisfactory to the Lender) of such documents and instruments, if any, therein required or deemed necessary by the Lender to evidence the fulfillment and/or satisfaction of said conditions precedent:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent The Borrower and the Incremental Lenders shall Lender have received a certificate executed and delivered this Amendment or have caused the same to that effect dated such date and executed by a Financial Officer of Terex.be done;
(b) The Administrative Agent Borrower has executed and delivered to the Incremental Lenders shall each have received a duly completed Borrowing Request Lender the Amended and Restated Promissory Note dated January 15, 1997 in accordance with the provisions principal amount of Section 2.03 of $4,000,000.00 (the Credit Agreement."New Note");
(c) The Administrative Agent shall have receivedLender has received a Certificate of Resolutions, on behalf certified by the corporate secretary of itself the Borrower and setting forth a true, complete and accurate copy of the resolutions approved by the Board of Directors, of the Borrower authorizing the entering into, execution and delivery of this Amendment and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to New Note by the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Borrower thereunder;
(d) The Administrative Agent Lender has received an Opinion of Counsel for the Borrower's counsel in form and substance acceptable to the Incremental Lenders shall each have Lender;
(e) The Lender has received an Officer's Certificate setting forth the following: (i) the name of each of the duly elected and acting officers of the Borrower together with the title of each office each holds; (ii) the name and title of each officer of the Borrower who is authorized by the Board of Directors of the Borrower to enter into, execute and deliver the Documents on behalf of the Borrower and a specimen signature of each of said officers and (iii) a certified copy of a current Certificate of Good Standing of the certificate of incorporation, including all amendments thereto, of Terex, Borrower certified as of a recent date by the Secretary of State of the State of Delaware, and ;
(f) The Lender has received a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate copy of the Secretary or Assistant Secretary Borrower's articles of Terex dated the Incremental Term Loan Closing Date and certifying incorporation;
(Ag) that attached thereto is The Lender has received a true and complete copy of the by-laws laws, as amended, of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior Borrower;
(h) The Borrower shall have paid to the date of Lender the resolutions described in clause Loan Fee (B) defined below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause ); and
(i) aboveSuch other agreements, certificates instruments or legal opinions in writing as shall be deemed by the Lender or its counsel necessary or desirable in order to more fully and completely service, protect, perfect or preserve the Lender's Security Interests and other interests in and to the Aircraft, and (D) as to otherwise under the incumbency Documents and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestMortgage.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Consolidated Aircraft and Engine Loan and Security Agreement (Tower Air Inc)
Conditions Precedent. The ▇▇▇▇▇▇’s obligation of to provide the Incremental Lenders Additional Financial Accommodations to make Incremental Term Loans hereunder shall be Borrowers is subject to satisfaction the full and timely performance of the following conditions precedent:
(a) On 3.1. Borrowers executing and delivering, or causing to be executed and delivered to Lender, the Incremental Term Loan Closing Datefollowing documents, each of which shall be in form and substance acceptable to Lender:
(i) a duly executed original of this Third Amendment;
(ii) a duly executed original 2024 Delayed Draw Term Note executed and delivered by Borrowers to Lender in the conditions set forth in paragraphs (b) and (c) of Section 4.01 principal amount of the Credit Agreement shall be satisfied, 2024 Delayed Draw Term Loan Commitment;
(iii) a duly executed original 2024 Term Note executed and each delivered by Borrowers to Lender in the principal amount of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such 2024 Term Loan Commitment;
(iv) an original Company General Certificate of even date and herewith duly executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ Loan Party to ▇▇▇▇▇▇;
(v) a Disbursement Request executed and delivered by Borrowers to ▇▇▇▇▇▇ directing the disbursement of the proceeds of the 2024 Term Loan; and
(vi) such other agreements, General Counsel documents and instruments as Lender may reasonably request.
3.2. No Event of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to Default or Default exists under the Loan Documents Agreement, as the Administrative Agent amended by this Third Amendment, or the Incremental Lenders shall reasonably requestother Loan Documents;
3.3. No claims, and Terex hereby requests such counsel litigation, arbitration proceedings or governmental proceedings not disclosed in writing to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date Lender prior to the date of hereof shall be pending or known to be threatened against any Borrower and no known material development not so disclosed shall have occurred in any claims, litigation, arbitration proceedings or governmental proceedings so disclosed which in the resolutions described opinion of Lender is likely to materially or adversely affect the financial position or business of any Borrower or the capability of any Borrower to pay its obligations and liabilities to Lender; and
3.4. There shall have been no material or adverse change in clause (B) belowthe business, (B) that attached thereto is a true and complete copy financial condition or results of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended operations since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant Borrowers’ most recently delivered financial statements to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature Lender.
3.5. The repayment in full of the Secretary or Assistant Secretary executing Term Loan, the certificate pursuant to (ii) above; Delayed Draw Term Loan and (iv) such other documents as the Incremental Lenders or principal balance of the Administrative Agent may reasonably requestRevolving Loan from the proceeds of the 2024 Term Loan.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Loan and Security Agreement (Kingsway Financial Services Inc)
Conditions Precedent. The obligation This Agreement shall be deemed to be effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be Increase Effective Date, subject to satisfaction the execution and delivery of the following conditions precedentdocuments, each in form and substance satisfactory to the Administrative Agent:
(a) On this Agreement executed and delivered by each Borrower, each Guarantor, the Incremental Term Loan Closing DateAdministrative Agent, and the Expansion Lenders;
(b) one or more Notes substantially in the form of Exhibit A to the Credit Agreement issued in favor of each of the conditions set forth in paragraphs Expansion Lenders reflecting their respective Revolving Commitments and Term Loans (b) and the “New Notes”);
(c) a certificate dated as of the date hereof signed by a duly authorized officer of each Borrower and Guarantor (i) certifying and attaching the resolutions adopted by each Borrower and Guarantor’s board of directors or trustees (or other appropriate governing body or Persons) authorizing the transactions described herein and evidencing the due authorization, execution and delivery of this Agreement, the New Notes and each of the other Loan Documents to which such Loan Party is a party executed in connection with the Increase, (ii) certifying that the organizational documents of each Borrower and Guarantor have not been amended, modified or rescinded since they were last furnished in writing to the Administrative Agent, and remain in full force and effect as of the date hereof, (iii) certifying that each Borrower and Guarantor is duly formed, validly existing and in good standing under the laws of such entity’s organization, and that there is no pending or to such officer’s knowledge, threatened proceeding for dissolution, liquidation or other similar matter with respect to any Borrower or Guarantor, (iv) certifying that, before and immediately after giving effect to the Increase and this Agreement, (A) the representations and warranties contained in Section 4.01 7 of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (or in all respects to the extent that such representations and warranties are already subject to concepts of materiality) on and as of the Increase Effective Date with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in such respects on and as of such earlier date) and except that for purposes hereof, the representations and warranties contained in Section 7.11 of the Credit Agreement shall be satisfied, and each of deemed to refer to the Administrative Agent and the Incremental Lenders shall have received a certificate most recent statements furnished pursuant to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 Article IX of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy there has been no material adverse change in the business, assets, operations, condition (financial or otherwise) or properties of resolutions duly adopted by any of the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended Loan Parties since the date of the last amendment thereto shown on financial statements most recently delivered to the certificate of good standing furnished Administrative Agent pursuant to clause (i) abovethe Credit Agreement, and (DC) as to the incumbency no Default or Event of Default exists;
(d) an Augmenting Lender Agreement executed and specimen signature of delivered by each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.Expansion Lender;
(e) The Incremental Lenders shall have received evidence reasonably satisfactory favorable opinions of counsel to them the Borrowers and Guarantors acceptable to the Administrative Agent with respect to this Agreement and the Increase reflected herein and the New Notes; provided, that the Administrative Agent may, in its sole discretion, permit one or more such opinions to be delivered promptly following the effectiveness of this Agreement; and
(if) payment by the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pBorrowers in immediately available funds of the fees agreed to in connection with the Increase.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Increase Agreement (National Storage Affiliates Trust)
Conditions Precedent. The obligation Section 2.01 of this Agreement shall become effective on and as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of first date (the “Effective Date”) on which the following conditions precedenthave been satisfied and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the Effective Date is subject to the satisfaction of such conditions precedent before or concurrently with the Effective Date:
(a) On The Administrative Agent shall have received on or before the Incremental Term Loan Closing Dateday of the Effective Date the following, each of dated such day (unless otherwise specified), in form and substance satisfactory to the conditions set forth in paragraphs Lender Parties (bunless otherwise specified) and (cexcept for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 4.01 2.16.
(ii) A security agreement in substantially the form of Exhibit D hereto (the “Security Agreement”), duly executed by each applicable Loan Party (other than the General Partner), together with:
(A) to the extent certificated, certificates representing the Pledged Equity referred to therein accompanied by undated stock (or its equivalent) powers executed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the Effective Date all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the Credit completion of all other recordings and filings of or with respect to the Security Agreement shall that the Administrative Agent may deem necessary or desirable in order to perfect and protect the security interest created thereunder, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and third-party consents).
(iii) Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit E hereto (with such changes as may be satisfiedsatisfactory to the Administrative Agent and its counsel to account for local law matters) and otherwise in form and substance satisfactory to the Administrative Agent and covering the Real Property Collateral (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered in form suitable for filing or recording, in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties, subject only to Permitted Encumbrances, and each that all filing and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amount acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens and Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the Effective Date (or such other date approved by the Administrative Agent in its sole discretion), certified to the Administrative Agent and the Incremental Lenders issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the Leased Real Properties listed in Part I of Schedule III hereto (to the extent required by the terms of the applicable lease), along with (x) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (y) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (z) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Mortgages,
(F) an appraisal of each of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, which appraisals shall be from a Person acceptable to the Administrative Agent and otherwise in form and substance satisfactory to the Lender Parties, and
(G) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may deem necessary or desirable and evidence that all other actions that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken.
(iv) Certified copies of the resolutions of the Board of Directors, general partner or managing member, as applicable, of each Loan Party approving the Transaction and each Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (3) such Loan Party, general partner or managing member, as the case may be, is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(vi) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner or managing member, as applicable, since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Effective Date, (C) the due incorporation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited partnership or limited liability company organized under the laws of the jurisdiction of its incorporation, organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party by its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable) certifying the names and true signatures of the officers of such Loan Party, general partner or managing member authorized to sign each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request.
(ix) A certificate in substantially the form of Exhibit F hereto attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officer.
(x) Audited annual financial statements dated December 31, 2003, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements and forecasts prepared by management of the Revolving Credit Borrower, in form and substance satisfactory to the Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly basis for the first two years following the Effective Date and on an annual basis for each year thereafter until the Termination Date, together with a business plan prepared by management of the General Partner reasonably acceptable to the Lender Parties for each year of the Facilities through 2009 setting forth an analysis of the business and prospects of the General Partner and its Subsidiaries.
(xi) An environmental assessment report with respect to the Acquired Properties, in form and substance satisfactory to the Lender Parties, from an environmental consulting firm acceptable to the Administrative Agent, as to any hazards, costs or liabilities under Environmental Laws with respect to the Acquired Properties to which any Loan Party or any of its Subsidiaries may be subject, the amount and nature of which and the Revolving Credit Borrower’s plans with respect to which shall be acceptable to the Lender Parties, together with evidence, in form and substance satisfactory to the Lender Parties, that all applicable Environmental Laws shall have received a certificate been complied with.
(xii) An engineering report for each Acquired Property, in form and substance satisfactory to the Administrative Agent, showing that effect dated all improvements are in good workable condition and comply with all applicable regulations (including, without limitation, the American Disabilities Act) or, in the case of any material non-compliance, an estimate of the cost and description of any deferred maintenance and repairs.
(xiii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit.
(xiv) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, in substantially the form of Exhibit G hereto and as to such date other matters as any Lender Party through the Administrative Agent may reasonably request.
(xv) A favorable opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Loan Parties, in substantially the form of Exhibit H hereto and executed by a Financial Officer of Terexas to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(b) The Administrative Agent and the Incremental Lenders Acquisition shall each have received a duly completed Borrowing Request been consummated in accordance with the provisions of Section 2.03 terms of the Credit Purchase Agreement, without any material waiver or amendment not consented to by the Administrative Agent of any material term, provision or condition set forth therein, and in compliance with all applicable laws.
(c) The Administrative Agent shall have receivedbe satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated and that all Surviving Debt shall be on behalf of itself terms and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, conditions satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionLender Parties.
(d) The Administrative Agent and the Incremental Lenders Lender Parties shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy chief financial officer of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior General Partner to the date effect that (i) the aggregate Projected Net Operating Income of the resolutions described in clause (B) belowAcquired Properties as of the Effective Date is not less than $78,500,000, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (Cii) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown Leverage Ratio, determined on the certificate of good standing furnished pursuant to clause (i) above, and (D) as a pro forma basis giving effect to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; Transaction, is not greater than 0.725:1.00, (iii) a certificate of another officer as to that the incumbency and specimen signature of Consolidated Net Operating Income for the Secretary or Assistant Secretary executing Acquired Properties for the certificate pursuant to (ii) above; fiscal year ended December 31, 2004 was at least $70,000,000 and (iv) such other documents as that the Incremental Lenders or Consolidated Net Operating Income for the Administrative Agent may reasonably requestGeneral Partner and its Subsidiaries for the fiscal year ended December 31, 2004 was at least $200,000,000.
(e) The Incremental Lenders Before giving effect to the Transaction, there shall not have received evidence occurred any event, change or condition since December 31, 2003 that, individually or in the aggregate, has had, or could reasonably satisfactory be expected to them that have, a material adverse effect on (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and Transaction, or (ii) the business, assets, liabilities, operations, condition (financial or otherwise), operating results, projections or prospects of the Revolving Credit Borrower and its Subsidiaries, taken as a whole, or the General Partner and its Subsidiaries, taken as a whole, or (iii) the validity or enforceability of any guarantees relating to such bonds of the Loan Documents or the rights and remedies of the Lender Parties thereunder.
(f) The Borrowers shall have been irrevocably cancelled paid all accrued fees of the Agents and no amounts payable in respect the Lender Parties and all accrued expenses of such guarantees remain outstandingthe Agents (including the reasonable accrued fees and expenses of counsel to the Administrative Agent and local counsel to the Lender Parties).
(g) The Re
Appears in 1 contract
Conditions Precedent. The obligation 4.1 Conditions Precedent to Initial Loans and Letter of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction Credit Accommodations. Each of the following conditions precedentis a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) On Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the Incremental Term Loan Closing Datetermination by the existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and authorization for Lender to file them from the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.existing lenders;
(b) The Administrative Agent all requisite corporate action and proceedings in connection with this Agreement and the Incremental Lenders other Financing Agreements shall each be satisfactory in form and substance to Lender, and Lender shall have received a duly completed Borrowing Request all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have receivedconnection therewith, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent documents where requested by Lender or the Incremental Lenders shall reasonably request, and Terex hereby requests such its counsel to deliver such opinion.
be certified by appropriate corporate officers or Governmental Authority (d) The Administrative Agent and the Incremental Lenders shall each have received (i) including a copy of the certificate of incorporation, including all amendments thereto, incorporation of Terex, Borrower certified as of a recent date by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the State other Financing Agreements to which it is a party in any material respect or of DelawareLender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and a certificate as other documents and information that will enable Lender to accurately identify and verify the good standing Collateral), the results of Terex as of a recent date from such Secretary of State; which in each case shall be satisfactory to Lender, not more than three (ii3) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date Business Days prior to the date of hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by Collateral or to effectuate the board of directors of Terex authorizing the execution, delivery and performance provisions or purposes of this Agreement and the borrowings hereunderother Financing Agreements, including, without limitation, Collateral Access Agreements by owners and that such resolutions have not been modifiedlessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) the Excess Availability as determined by Lender, rescinded or amended and are in full force and effect, (C) that the certificate as of incorporation of Terex has not been amended since the date hereof, shall be not less than $5,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the last amendment thereto shown on initial transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, Borrower and each bank where Borrower has a deposit account (other than deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefits payments to or for the certificate benefit of good standing furnished pursuant Borrower's employees), in each case, duly authorized, executed and delivered by such bank and Borrower (or Lender shall be the bank's customer with respect to clause such deposit account, as Lender may specify);
(h) Lender shall have received, in form and substance satisfactory to Lender, Investment Property Control Agreements by and among Lender, Borrower and each bank or other financial institution where Borrower has a money market or other investment account (other than investment accounts exclusively used for payroll, payroll taxes and other employee wage and benefits payments to or for the benefit of Borrower's employees), in each case, duly authorized, executed and delivered by such bank or other financial institution and Borrower;
(i) aboveLender shall have received evidence, in form and (D) as substance satisfactory to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) Lender, that Lender has a certificate of another officer as to the incumbency and specimen signature valid perfected first priority security interest in all of the Secretary or Assistant Secretary executing the certificate pursuant Collateral, subject only to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.liens permitted under Section 9.8 hereof;
(ej) The Incremental Lenders Lender shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation or organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(k) Lender shall have received evidence, in form and substance satisfactory to Lender, that the inventory records of Borrower shall set forth in a manner satisfactory to Lender the amount, value and location of inventory consisting of demonstrator models, tradeshow machines, new and used machines and damaged inventory;
(l) Lender shall have received evidence reasonably of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to them that Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(im) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(n) the bonds issued by Fantuzzi Finance S.A. other Financing Agreements and guaranteed by Reggiane Cranes & Plants S.p.A. all instruments and documents hereunder and thereunder shall have been discharged duly executed and delivered to Lender, in full form and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating substance satisfactory to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingLender.
Appears in 1 contract
Sources: Loan and Security Agreement (Hirsch International Corp)
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be this Agreement is subject to the prior or concurrent satisfaction of each of the following conditions precedent:(the date of such satisfaction, the “Effective Date”):
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.:
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a fully executed copy of this Agreement duly executed by Borrower, Administrative Agent, and the Required Lenders;
(ii) a fully executed copy of the Consent and Reaffirmation attached hereto executed by Newco and each other Guarantor with respect to the Guaranty;
(iii) a certificate of incorporationthe secretary or assistant secretary (or equivalent officer) of Borrower and Newco dated as of the Effective Date, including all amendments theretocertifying on behalf of such Person (A) that attached thereto are true, correct and complete copies of Terex, (1) the articles or certificate of incorporation or organization (or equivalent document) of such Person certified as of a recent date by the Secretary of State of the State state of Delawareits organization and (2) the bylaws, operating agreement, or applicable governing document of such Person, (B) that attached thereto is a true, correct and complete copy of a certificate as to the good standing of Terex such Person as of a recent date date, from such the Secretary of State; State (iior other applicable Governmental Authority) a certificate of the Secretary or Assistant Secretary its jurisdiction of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) beloworganization, (BC) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or board of Terex members or equivalent governing body) of such Person authorizing the execution, delivery and performance of this Agreement and and/or the borrowings hereunderother Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate effect as of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) abovesuch certificate, and (D) as to the signature and incumbency and specimen signature certificates of each officer its officers executing this Agreement and/or any of the other Loan Documents or any other document delivered in connection herewith on behalf of Terex; such Person (iii) together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the Secretary officer or Assistant Secretary authorized person executing the certificate pursuant to in this clause (ii) above; and iii));
(iv) a Solvency Certificate from Borrower certifying that, after giving effect to the Merger Transaction and the other transactions to occur on the Effective Date, the Combined Companies, taken as a whole and on a consolidated basis, are Solvent;
(v) a duly completed Compliance Certificate, calculated giving pro forma effect to this Agreement and the transactions related hereto, for the fiscal quarter of the Combined Companies most recently ended prior to the Effective Date, together with backup documentation acceptable to Administrative Agent;
(vi) a certificate of a Responsible Officer of Borrower dated as of the Effective Date, certifying on behalf of Borrower (A) as to the matters set forth in clauses (b) and (c) below, and (B) that the execution, delivery and performance of this Agreement and the consummation of the Merger Transaction and all other transactions related hereto and thereto will not constitute a default or breach under the terms of any material agreement or instrument listed by CCPT V as an exhibit to its Form 10-Q report filed with the SEC for the quarter ended September 30, 2020;
(vii) a favorable opinion from counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such other documents matters concerning the Loan Parties and the Loan Documents as the Incremental Lenders or the Administrative Agent may reasonably request.; and
(eviii) The Incremental Lenders a certified copy of the certificate of merger issued by the Department of Assessments and Taxation of the State of Maryland evidencing the Merger Transaction;
(b) subject to the consents and amendments provided herein, no Default or Event of Default shall have occurred and be continuing or shall be caused by the transactions contemplated by this Agreement;
(c) the representations and warranties set forth in Section 5 hereof are true and correct in all material respects as of the date hereof, except to the extent such representation or warranty (i) specifically relates to an earlier date, in which case such representation or warranty is true and correct in all material respects as of such earlier date, or (ii) is qualified by materiality, Material Adverse Effect or words of similar effect, in which case such representation or warranty is true and correct in all respects;
(d) Administrative Agent, on behalf of itself and the Lenders, as applicable, shall have received evidence reasonably satisfactory payment for all fees and expenses required to them that be paid on or prior to the Effective Date pursuant to this Agreement or any other Loan Document;
(i) At least five (5) days prior to the bonds issued by Fantuzzi Finance S.A. Effective Date, all documentation and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged other information regarding Borrower and each other Loan Party requested in full connection with applicable “know your customer” and no amounts payable anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in respect writing of such bonds remain outstanding Borrower at least ten (10) days prior to the Effective Date, and (ii) to the extent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the date hereof, any guarantees relating Lender that has requested, in a written notice to such bonds Borrower at least ten (10) days prior to the date hereof, a Beneficial Ownership Certification in relation to Borrower shall have been irrevocably cancelled received such Beneficial Ownership Certification (provided that, upon the execution and no amounts payable delivery by such Lender of its signature page to this Agreement, the condition set forth in respect of this clause (e)(ii) shall be deemed to be satisfied); and
(f) Administrative Agent shall have received such guarantees remain outstandingother certificates, documents and agreements as Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Sources: Modification Agreement (Cim Real Estate Finance Trust, Inc.)
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder This Agreement shall be subject to effective upon satisfaction of the following conditions precedent:
(a) On The Administrative Agent’s receipt of the Incremental Term Loan Closing Datefollowing:
(i) executed counterparts of this Agreement duly executed by the Borrower, each Lender (including in its capacities as an Issuing Lender and the Swing Line Lender, as applicable), and the Administrative Agent;
(ii) a certificate duly executed by the chief financial officer or treasurer of the Borrower certifying (A) that the conditions set forth in paragraphs (bSection 2(b), Section 2(c) and (cSection 2(d) of Section 4.01 of have been satisfied on the Credit Agreement shall be satisfiedFirst Amendment Effective Date, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(bB) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed Debt Ratings issued most recently prior to the Administrative Agent and the Incremental Lenders and First Amendment Effective Date;
(iii) covering such matters relating to a certificate duly executed by the Loan Documents as the Administrative Agent secretary or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy assistant secretary of the certificate Borrower certifying to and attaching (A) copies of incorporation, including all amendments thereto, the Organizational Documents of Terexthe Borrower, certified as of a recent date by the Secretary of State of the State Borrower’s jurisdiction of Delaware, and a certificate as to the good standing of Terex incorporation as of a recent date from such Secretary of State; prior to the First Amendment Effective Date, (iiB) a good standing certificate from the appropriate governmental officer of the Secretary or Assistant Secretary Borrower’s jurisdiction of Terex incorporation dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is as of a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a recent date prior to the date First Amendment Effective Date, (C) resolutions of the resolutions described in clause (B) below, (B) that attached thereto is a true Governing Body of the Borrower approving and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, execution and delivery of this Agreement and the performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) abovetransactions contemplated hereby, and (D) as to signature and incumbency certificates of the incumbency and specimen signature officers of each officer the Borrower executing this Agreement on behalf of Terexand the other Loan Documents; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and and
(iv) executed copies of the opinions of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, general counsel for the Borrower, and ▇▇▇▇▇▇ & Whitney LLP, special counsel for the Borrower, all dated as of the First Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent. CHAR1\1735555v4 2
(b) No event has occurred and is continuing, or would result from giving effect to the Extension, the Revolving Loan Commitment Increase, and the other transactions contemplated by this Agreement, that would constitute an Event of Default or a Potential Event of Default.
(c) After giving effect to the Extension, the Revolving Loan Commitment Increase, and the other transactions contemplated by this Agreement, the representations and warranties contained in the Amended Credit Agreement (other than subsection 5.4 of the Amended Credit Agreement) and in the other Loan Documents shall be true and correct in all material respects on and as of the First Amendment Effective Date to the same extent as though made on and as of the First Amendment Effective Date, except to the extent such other documents representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided, that, if a representation and warranty is qualified as to materiality, the Incremental Lenders or materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this Section 2(c).
(d) Since the date of the most recent audited financial statements delivered to the Administrative Agent may pursuant to subsection 6.1 of the Existing Credit Agreement, there shall not have occurred any event, circumstance or development that constitutes or has had or that could reasonably requestbe expected to constitute or have a Material Adverse Effect.
(e) Any fees required to be paid on or before the First Amendment Effective Date pursuant to (i) any fee letter entered into in connection with this Agreement, or (ii) the Loan Documents, in each case, shall have been paid.
(f) The Incremental Lenders Borrower shall have provided to the Administrative Agent the documentation and other information reasonably requested by the Administrative Agent or a Lender in order to comply with the requirements of the Act. The Administrative Agent and any Lender requesting the same shall have received evidence reasonably satisfactory a Beneficial Ownership Certification in relation to them the Borrower (or a certification that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pBorrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations).A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit Agreement (Mosaic Co)
Conditions Precedent. In no event shall the Buyer acquire, or agree to acquire, any mortgage loans under a Transaction on any day if the conditions precedent set forth below are not satisfied. The obligation of conditions precedent are the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentfollowing:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.mortgage loan is an Eligible Asset on such day;
(b) The Administrative Agent each such mortgage loan satisfies, and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 (after giving effect to such proposed Transaction) all of the Credit Agreement.Purchased Mortgage Loans satisfy, the criteria set forth in Schedule II;
(c) The Administrative Agent shall have receivedno exception has been reported by the custodian for any mortgage loan to be purchased;
(d) an Event of Default has not occurred or if it has occurred, on behalf has been waived by the requisite holders of itself the Buyer’s Source of Funds;
(e) after giving effect to the Buyer’s purchase of the Eligible Assets and the Incremental Lenderspayment of the Purchase Price to the Seller, a favorable written opinion Margin Deficit will not exist on such day;
(f) none of the Program Agreements have ceased to be in full force and effect unless the Rating Agency Condition has been satisfied in connection with the termination of any such Program Agreement;
(g) after giving effect to the proposed Transaction and the repurchase of Purchased Assets with a Repurchase Date on such day, the aggregate Purchase Price of all outstanding Transactions shall not exceed the Maximum Aggregate Purchase Price;
(h) after giving effect to the proposed Transaction and the repurchase of Purchased Assets with a Repurchase Date on such day, the outstanding balance of such Purchased Assets plus amounts on deposit in the Buyer’s Account is not less than the Maximum Aggregate Purchase Price; and
(i) Buyer and Collateral Agent have theretofore received a copy executed by Seller of a blanket assignment of any Participation Certificates in the form of Exhibit A to the Custodial Addendum in ▇▇▇▇▇ ▇▇▇. Prior to entering into any Transaction and subject to any additional terms and conditions of this Agreement, including the Custodial Addendum attached as ▇▇▇▇▇ ▇▇▇ hereto, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, Buyer (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Collateral Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; the Buyer) shall confirm that each proposed mortgage loan meets the eligibility criteria set forth on Schedule II (iii) a certificate for the avoidance of another officer as to doubt, the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Collateral Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory no responsibility for verifying the representations and warranties set forth in Schedule I) by performing an eligibility test with respect to them that (i) each such mortgage loan substantially in the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pform as provided on Exhibit A hereto.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction Each of the following conditions precedentshall be a condition precedent to the effectiveness of this First Amendment:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(ci) The Administrative Agent shall have received, received on behalf of itself and each Lender, on or before the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing First Amendment Effective Date, duly executed counterpart originals of this First Amendment (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionwhich may be initially delivered via telecopier).
(dii) The Administrative Agent shall have received on behalf of each Lender, on or before the First Amendment Effective Date, a Short Term Revolving Credit Note, a Long Term Revolving Credit Note and (with respect to the New Lender only) a Bid Rate Note made payable to such Lender in the appropriate amounts and otherwise properly completed and executed by the Borrower (and which may be initially delivered via telecopier).
(iii) The following statements shall be true and correct on the First Amendment Effective Date, and the Incremental Lenders Administrative Agent shall each have received (i) a copy certificate signed by an authorized officer of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex Borrower dated the Incremental Term Loan Closing First Amendment Effective Date and certifying stating that:
(A) that attached thereto is a except to the extent modified in writing by the Borrower heretofore delivered to the Banks, the representations and warranties made pursuant to Section 3.01 of this First Amendment and in the other Loan Documents are true and complete copy correct on and as of the by-laws First Amendment Effective Date as though made on and as of Terex as such date in effect all material respects;
(B) no Event of Default or Potential Default has occurred and is continuing, or would result from the execution of or performance under this First Amendment;
(C) the Borrower has in all material respects performed all agreements, covenants and conditions required to be performed on the Incremental Term Loan Closing Date and at all times since a date or prior to the date hereof under the Existing Agreement and the other Loan Documents.
(iv) The Administrative Agent shall have received a certificate, duly certified as of the resolutions described date hereof, by the secretary or assistant secretary of the Borrower, as to (A) the Certificate of Incorporation of the Borrower in clause (B) beloweffect as of the date hereof, (B) that attached thereto is a true and complete copy the By-Laws of resolutions duly adopted by the board Borrower in effect as of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effectdate hereof, (C) that the certificate of incorporation of Terex has not been amended since the date resolutions of the last amendment thereto shown on Borrower's Board of Directors authorizing the certificate borrowings hereunder and the execution and delivery of good standing furnished pursuant to clause (i) abovethis First Amendment, the Notes, and all documents supplemental hereto and (D) as the names of the officers of the Borrower authorized to sign this First Amendment, the incumbency new Notes, and specimen all supplemental documentation and which contains a true signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestofficer.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to date hereof upon (and only upon) satisfaction of the following conditions precedent:precedent (the “Fourth Amendment Effective Date”):
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the a. The Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date duly executed originals of this Amendment from each Obligor and executed by a Financial Officer of Terex.each Lender;
(b) b. The Administrative Agent shall have received evidence that all material governmental, shareholder, board of director and third party consents and approvals necessary in connection with the execution, delivery and performance of this Amendment and the Incremental Lenders shall each other transactions contemplated thereby have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.been obtained;
(c) c. The Administrative Agent shall have received, on behalf of itself in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance reasonably satisfactory to the Administrative Agent and Agent, a certificate from the Incremental Lenderssecretary or a member of the board of directors or other equivalent officer of each Obligor, together with certified copies of each of the following attachments (to the extent applicable in the relevant jurisdiction):
(i) dated copies of or, to the Incremental Term Loan Closing Date, (ii) addressed extent such document has not changed since the last delivery thereof to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating Agent, a certification of no change to the Loan Documents articles of incorporation or other charter documents, as applicable, of such Obligor certified to be true and complete as of a recent date by the Administrative Agent appropriate governmental authority of the jurisdiction of its incorporation or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.organization;
(d) The Administrative Agent and the Incremental Lenders shall each have received (iii) a copy of or, to the certificate extent such document has not changed since the last delivery thereof to the Administrative Agent, a certification of incorporationno change to the bylaws or comparable operating agreement of such Obligor;
(iii) copies of certificates of good standing, including all amendments thereto, of Terex, existence or its equivalent with respect to such Obligor certified as of a recent date by the Secretary of State appropriate governmental authorities of the State jurisdiction of Delaware, incorporation or organization and a certificate as each other jurisdiction in which the failure to the so qualify and be in good standing of Terex as of could reasonably be expected to have a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect Material Adverse Effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date business or operations of the resolutions described in clause such Obligor;
(Biv) below, (B) that attached thereto is a true and complete copy copies of resolutions duly adopted by of (i) the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding Obligor and (ii) any guarantees relating to the shareholders' meeting of the Swiss Borrower, approving and adopting this Amendment, the transactions contemplated herein and authorizing execution and delivery thereof; and
(v) incumbency signatures of appropriate officers or authorized signatories of such bonds Obligor, including each officer or authorized signatory executing this Amendment;
d. The Administrative Agent shall have been irrevocably cancelled received a certificate of a senior officer of the U.S. Borrower, in such capacity, certifying that, to the best of his knowledge after due inquiry, (i) no Default or Event of Default has occurred and no amounts payable is continuing or will occur as a result of the consummation of the transactions contemplated hereby and (ii) all representations and warranties contained in respect the Credit Documents are true and correct in all material respects (without duplication of any materiality qualifier in the text of such guarantees remain outstandingrepresentation or warranty);
e. The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and Lenders, opinions of legal counsel (including local counsel to the extent required by the Administrative Agent) for the Obligors dated as of the date hereof and addressed to the Administrative Agent and each Lender;
f. The Borrowers shall have paid to the Lead Arrangers (as defined in the Fee Letter (defined below)), the Administrative Agent and the Lenders all fees and expenses required to be paid on the Fourth Amendment Effective Date pursuant to the Credit Documents and the Fee Letter, dated as of July 7, 2021, among the Borrower and the Lead Arrangers (the “Fee Letter”); and
g. The Borrowers shall have paid all reasonable costs, fees and expenses paid or incurred by the Administrative Agent incident to this Amendment and the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and expenses of the Administrative Agent’s counsel in connection with the negotiation, preparation, delivery and execution of this Amendment and any related documents and instruments, in each case, to the extent invoiced at least (2) two Banking Days prior to the Fourth Amendment Effective Date.
Appears in 1 contract
Sources: Revolving Facility Credit Agreement (Royal Gold Inc)
Conditions Precedent. The obligation This Second Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedent:
(a) On the Incremental Term Loan Closing Date, each of the conditions date set forth in paragraphs the introductory paragraph to this Second Amendment, but only if on or before 5:00 p.m. Central time on June 6, 2012:
1. The Administrative Agent (bor its counsel) shall have received:
1. duly executed counterparts of this Second Amendment that, when taken together, bear the signature of: (i) each Obligor; (ii) the Administrative Agent, and (ciii) of Section 4.01 of the Credit Agreement shall be satisfied, Lenders;
2. Warrant Agreements dated the date hereof by and among the Company and each of the Administrative Agent Lenders;
3. copies of the fully executed amendments to the Sears Agreements and the Incremental Lenders shall have received a certificate to Walmart Agreements that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and evidence the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory modifications presented to the Administrative Agent and by The Keystone Group relative to certain financial concessions in favor of the Incremental LendersCompany, (i) dated the Incremental Term Loan Closing Date, (ii) addressed which amendments shall be acceptable to the Administrative Agent in its sole and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.absolute discretion;
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) 4. a certificate of the Secretary or Assistant Secretary of Terex each Obligor dated as of the Incremental Term Loan Closing Effective Date and certifying certifying: (Ai) that attached thereto is a true and complete copy of the by-laws or operating agreement, as applicable, of Terex such Obligor as in effect on the Incremental Term Loan Effective Date or the copy of the by-laws or operating agreement, as applicable, of such Obligor, provided to the Administrative Agent and the Lenders on the Closing Date has not been amended, modified or replaced since the Closing Date and at all times since a date prior to the date of the resolutions described are in clause full force and effect; (B) below, (Bii) that attached thereto is a true and complete copy of the resolutions duly adopted by the board Board of directors Directors of Terex such Obligor authorizing the execution, delivery and performance of this Agreement Second Amendment and each other agreement, document or instrument executed or delivered by or on behalf of such Obligor in connection herewith and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, ; (Ciii) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other formation documents of Terex such Obligor, or the copy of the certificate or articles of incorporation or other formation documents of such Obligor provided to the Administrative Agent and the Lenders on the Closing Date has not been amended amended, modified or replaced since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, Closing Date and are in full force and effect; and (Div) as to the incumbency and specimen signature of each officer executing this Agreement Second Amendment or any other agreement, document or instrument executed or delivered by or on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged Obligor in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.connection herewith;
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Conditions Precedent. The obligation This Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to date hereof upon (and only upon) satisfaction of the following conditions precedent:precedent (the “Fifth Amendment Effective Date”):
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the a. The Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date duly executed originals of this Amendment from each Obligor and executed by a Financial Officer of Terex.each Lender;
(b) b. The Administrative Agent shall have received evidence that all material governmental, shareholder, board of director and third party consents and approvals necessary in connection with the execution, delivery and performance of this Amendment and the Incremental Lenders shall each other transactions contemplated thereby have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.been obtained;
(c) c. The Administrative Agent shall have received, on behalf of itself in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance reasonably satisfactory to the Administrative Agent and Agent, a certificate from the Incremental Lenderssecretary or a member of the board of directors or other equivalent officer of each Obligor, together with certified copies of each of the following attachments (to the extent applicable in the relevant jurisdiction):
(i) dated copies of or, to the Incremental Term Loan Closing Date, (ii) addressed extent such document has not changed since the last delivery thereof to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating Agent, a certification of no change to the Loan Documents articles of incorporation or other charter documents, as applicable, of such Obligor certified to be true and complete as of a recent date by the Administrative Agent appropriate governmental authority of the jurisdiction of its incorporation or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.organization;
(d) The Administrative Agent and the Incremental Lenders shall each have received (iii) a copy of or, to the certificate extent such document has not changed since the last delivery thereof to the Administrative Agent, a certification of incorporationno change to the bylaws or comparable operating agreement of such Obligor;
(iii) copies of certificates of good standing, including all amendments thereto, of Terex, existence or its equivalent with respect to such Obligor certified as of a recent date by the Secretary of State appropriate governmental authorities of the State jurisdiction of Delaware, incorporation or organization and a certificate as each other jurisdiction in which the failure to the so qualify and be in good standing of Terex as of could reasonably be expected to have a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect Material Adverse Effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date business or operations of the resolutions described in clause such Obligor;
(Biv) below, (B) that attached thereto is a true and complete copy copies of resolutions duly adopted by of (i) the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding ▇▇▇▇▇▇▇ and (ii) any guarantees relating to the shareholders' meeting of the Swiss Borrower, approving and adopting this Amendment, the transactions contemplated herein and authorizing execution and delivery thereof; and
(v) incumbency signatures of appropriate officers or authorized signatories of such bonds Obligor, including each officer or authorized signatory executing this Amendment;
d. The Administrative Agent shall have been irrevocably cancelled received a certificate of a senior officer of the U.S. Borrower, in such capacity, certifying that, to the best of his knowledge after due inquiry, (i) no Default or Event of Default has occurred and no amounts payable is continuing or will occur as a result of the consummation of the transactions contemplated hereby and (ii) all representations and warranties contained in respect the Credit Documents are true and correct in all material respects (without duplication of any materiality qualifier in the text of such guarantees remain outstandingrepresentation or warranty);
e. The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and Lenders, opinions of legal counsel (including local counsel to the extent required by the Administrative Agent) for the Obligors dated as of the date hereof and addressed to the Administrative Agent and each Lender;
f. The Borrowers shall have paid to the Lead Arrangers (as defined in the Fee Letter (defined below)), the Administrative Agent and the Lenders all fees and expenses required to be paid on the Fifth Amendment Effective Date pursuant to the Credit Documents and the Fee Letter, dated as of June 28, 2023, among the Borrower and the Lead Arrangers (the “Fee Letter”); and
g. The Borrowers shall have paid all reasonable costs, fees and expenses paid or incurred by the Administrative Agent incident to this Amendment and the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and expenses of the Administrative Agent’s counsel in connection with the negotiation, preparation, delivery and execution of this Amendment and any related documents and instruments, in each case, to the extent invoiced at least (2) two Banking Days prior to the Fifth Amendment Effective Date.
Appears in 1 contract
Sources: Revolving Facility Credit Agreement (Royal Gold Inc)
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction Each of the following conditions precedentshall -------------------- be a condition precedent to the effectiveness of this Second Amendment:
(ai) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent The Lenders and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent Agents shall have received, on behalf of itself or before the Second Amendment Effective Date, the following items, each, unless otherwise indicated, dated on or before the Second Amendment Effective Date and in form and substance satisfactory to the Lenders, the Agents and the Incremental LendersAdministrative Agent's special counsel, a favorable written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel P.C.:
(A) Duly executed counterpart originals of Terexthis Second Amendment, satisfactory executed by the Borrower, the Agents, and all of the Lenders;
(B) Amended and Restated Revolving Credit Notes, one each payable to each Lender in the principal amount of each Lender's increased Commitment, executed by the Borrower;
(C) A certified copy of the corporate action of the Borrower authorizing the execution and delivery of and the performance under this Second Amendment;
(D) A certification from the Borrower that its certificate of incorporation and its by-laws which were delivered to the Administrative Agent on May 8, 1998 continue to remain complete and correct and in full force and effect and have not been amended, supplemented or otherwise modified on or after such date (except as set forth in such certificate), which certification states the names of the Persons authorized to sign this Second Amendment and all other documents, instruments and certificates delivered hereunder, together with the true signatures of such Persons;
(E) A certificate signed by an Authorized Officer of the Borrower, dated the Second Amendment Effective Date, certifying that:
(1) the representations and warranties made pursuant to this Second Amendment and in the other Loan Documents executed in connection with this Second Amendment are true and correct on and as of the Second Amendment Effective Date as though made on and as of such date;
(2) no petition by or against the Borrower has at any time been filed under the United States Bankruptcy Code or under any similar act;
(3) except which those matters which have previously been disclosed to the Lenders, no Material Adverse Change in the properties, business, operations, financial condition or prospects of the Borrower has occurred; and
(4) the Borrower has in all material respects performed all agreements, covenants and conditions required to be performed on or prior to the date hereof under the Original Credit Agreement and the Incremental Lendersother Loan Documents, except to the extent waived by the Lenders on or before the Second Amendment Effective Date; and
(iF) dated Consents from each Guarantor existing as of the Incremental Term Loan Closing Date, Second Amendment Effective Date to the execution by the Borrower of the Second Amendment;
(iiG) addressed Payment to the Administrative Agent for the benefit of the Lenders, pro rata in accordance with their respective increased Commitments, of a fee of $31,250; and
(H) Such other instruments, documents and opinions of counsel as the Lenders and the Incremental Agents shall reasonably require, all of which shall be satisfactory in form and substance to the Lenders and (iii) covering such matters relating to the Loan Documents as Agents and the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionAgent's special counsel.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit Agreement (Respironics Inc)
Conditions Precedent. The obligation This Amendment, and the increased Commitment, shall become effective as of such date (such date, the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction “Amendment Effective Date”) that each of the following conditions precedentare satisfied:
(a) On Agent shall have received counterparts of this Amendment, duly executed by the Incremental Term Loan Closing DateBorrower, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of Servicer, the Credit Agreement shall be satisfiedAgent, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Lender;
(b) The Administrative Agent Borrower shall have executed and the Incremental Lenders shall delivered to each have received Lender having any increased Commitment a duly completed Borrowing Request promissory note evidencing Borrower’s obligations in accordance with the provisions of Section 2.03 respect of the Credit Agreement.Revolver Commitments of such Lender;
(c) The Administrative Agent shall have receivedreceived certificates, on behalf in form and substance satisfactory to it, from a knowledgeable Senior Officer of itself Borrower certifying that, after giving effect to this Amendment and the Incremental Lenders, a favorable written opinion making of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and initial Loans after the Incremental LendersAmendment Effective Date, (i) dated the Incremental Term Loan Closing Date, Borrower is Solvent; (ii) addressed to the Administrative Agent and the Incremental Lenders no Default or Event of Default exists; and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, representations and Terex hereby requests such counsel to deliver such opinion.warranties set forth in Section 8 are true and correct;
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) as to the Borrower and the Servicer, either (x) a copy of each certificate or articles of incorporation or organization or other applicable constitutive documents of such Person certified, to the certificate of incorporationextent applicable, including all amendments thereto, of Terex, certified as of a recent date by the Secretary applicable governmental authority or (y) written certification by such Person’s secretary, assistant secretary or other Senior Officer that such Person’s certificate or articles of State of the State of Delaware, incorporation or organization or other applicable constitutive documents most recently certified and a certificate as delivered to the good standing of Terex as of a recent date from Agent prior to the Amendment Effective Date pursuant to the Transaction Documents remain in full force and effect on the Amendment Effective Date without modification or amendment since such Secretary of State; original delivery, (ii) a certificate as to Borrower and Servicer, either (x) signature and incumbency certificates of the Secretary or Assistant Secretary Senior Officers of Terex dated such Person executing this Amendment and the Incremental Term Loan Closing Date and certifying (A) that attached thereto Transaction Documents to which it is a true party or (y) written certification by such Person’s secretary, assistant secretary or other Senior Officer that such Person’s signature and complete copy of incumbency certificates most recently delivered to the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date Agent prior to the date Amendment Effective Date pursuant to the Transaction Documents remain true and correct as of the resolutions described in clause (B) belowAmendment Effective Date, (Biii) that attached thereto is a true and complete copy copies of resolutions duly adopted by of the board of directors and/or similar governing bodies of Terex Borrower and Servicer approving and authorizing the execution, delivery and performance of this Agreement Amendment and the borrowings hereunderother Transaction Documents to which it is a party, and that certified as of the Amendment Effective Date by a secretary, an assistant secretary or a Senior Officer of such resolutions have not been modified, rescinded or amended and are Person as being in full force and effecteffect without modification or amendment (or in the case of Servicer, (C) written certification by the Servicer’s secretary, assistant secretary or other Senior Officer that such resolutions most recently delivered to the certificate of incorporation of Terex has not been amended since Agent prior to the date of Amendment Effective Date pursuant to the last amendment thereto shown Transaction Documents remain in full force and effect on the certificate of good standing furnished pursuant to clause (i) aboveAmendment Effective Date without modification or amendment since such original delivery), and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iiiiv) a certificate of another officer as existence or good standing (to the incumbency extent such concept exists) from the applicable governmental authority of Borrower’s and specimen signature Servicer’s jurisdiction of incorporation, organization or formation as of a reasonably recent date (provided that such certificate for Servicer can be provided not later than five (5) Business Days after the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.Amendment Effective Date);
(e) The Incremental Lenders Agent shall have received evidence reasonably a favorable written opinion of counsel to Borrower and Servicer in form and substance satisfactory to them that Agent and the Lenders covering, among other matters, (i) the bonds issued by Fantuzzi Finance S.A. enforceability of this Amendment, the Loan Agreement as amended hereby and guaranteed by Reggiane Cranes & Plants S.p.A. the other Transaction Documents, (ii) the grant and perfection of security interests in the Collateral, and (iii) such other matters as Agent may require in Agent’s sole discretion;
(f) The Agent and the Lenders shall have received, at least three Business Days prior to the Amendment Effective Date, all documentation and other information about the Borrower and the Servicer as shall have been discharged reasonably requested in full writing at least ten Business Days prior to the Amendment Effective Date by the Agent or any Lender that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act;
(g) after giving effect to this Amendment, no amounts payable Default or Event of Default shall have occurred and be continuing or shall be caused by the transactions contemplated by this Amendment;
(h) after giving effect to this Amendment, the representations and warranties of the Borrower and the Servicer set forth in respect this Amendment and the other Transaction Documents shall be true and correct in all material respects with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such bonds remain outstanding and earlier date); and
(iii) any guarantees relating to such bonds the Borrower shall have been irrevocably cancelled paid all fees payable to the Agent under the Fee Letter of even date herewith between Borrower and no amounts payable AloStar or under the Loan Agreement, including all reasonable and documented fees and expenses of Agent in respect connection with the negotiation, preparation, execution and delivery of such guarantees remain outstandingthis Amendment and the Transaction Documents (including, without limitation, the fees and expenses of counsel to Agent).
Appears in 1 contract
Sources: Loan and Security Agreement (Flat Rock Capital Corp.)
Conditions Precedent. The obligation This Amendment No. 4 shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of first date (the following conditions precedent:
(a“Amendment No. 4 Effective Date”) On the Incremental Term Loan Closing Date, when each of the conditions set forth in paragraphs (bthis Section 6 shall have been satisfied; provided that Sections 2(c) and (c2(d) of and the amendments contemplated in Section 4.01 3 hereof shall be effective immediately after the consummation of the Credit Agreement shall be satisfied, and each of the 2018 Refinancing:
(a) The Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date (i) an executed copy of this Amendment No. 4, (ii) an executed copy of the New Intercreditor Agreement, (iii) an executed copy of the Second Lien Credit Agreement, (iv) an executed copy of the Intercompany Subordination Agreement and (v) an executed by a Financial Officer copy of Terexthe Exchange Agreement (as defined in the Second Lien Credit Agreement).
(b) All costs, fees and expenses (including, without limitation, legal fees and expenses) contemplated and to the extent required by the Credit Agreement, the Engagement Letter and any other letter agreement between the Borrower and any Arranger relating to the transactions contemplated hereby, and which are payable to the Refinancing Arranger or any other Arranger (or the 2018 Refinancing Term Lenders or the 2018 Upsize Term Lender) or the Administrative Agent shall have been paid to the extent due. All accrued interest on, and any amounts owing under Section 2.13 of the Credit Agreement with respect to, the Initial Term Loans outstanding immediately prior to the Amendment No. 4 Effective Date, whether or not due and payable, shall have been paid in full.
(c) No Default or Event of Default shall have occurred or be continuing, or would occur immediately after giving effect to the incurrence of the 2018 Refinancing Term Loans and the 2018 Upsize Term Loans and the other transactions contemplated by this Amendment No. 4.
(d) Each of the representations and warranties made by any Loan Party set forth in Section 5 hereof shall be true and correct in all material respects (provided that, any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of the Amendment No. 4 Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or if any such representation and warranty is qualified by “materiality,” “material adverse effect” or similar language, shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of such earlier date).
(e) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with meeting the provisions requirements of Section 2.03 of the Credit AgreementAgreement for the 2018 Refinancing Term Loans and the 2018 Upsize Term Loans.
(cf) The Administrative Agent shall have receivedreceived a certificate of the Borrower, on behalf dated the Amendment No. 4 Effective Date, executed by a Responsible Officer of itself the Borrower certifying compliance with the requirements set forth in clauses (c) and (d) of this Section 6.
(g) On the Incremental LendersAmendment No. 4 Effective Date, the Administrative Agent shall have received a favorable written customary opinion of Ropes & ▇▇▇▇ ▇▇▇▇▇LLP, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating counsel to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel Parties addressed to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.the
Appears in 1 contract
Sources: First Lien Credit Agreement
Conditions Precedent. The obligation This Amendment, and the waiver set forth in Paragraph 4 hereof, shall be effective when the Lender shall have received an executed original hereof, together with each of the Incremental Lenders following, each in substance and form acceptable to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentLender in its sole discretion:
(a) On The replacement revolving note substantially in the Incremental Term Loan Closing Dateform of Exhibit A-2 hereto, each duly executed on behalf of the conditions set forth in paragraphs Borrower (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex"Replacement Note").
(b) The Administrative Agent Acknowledgment and Agreement of Guarantor set forth at the Incremental Lenders shall each have received a end of this Amendment, duly completed Borrowing Request in accordance with executed by the provisions of Section 2.03 of the Credit AgreementGuarantor.
(c) The Administrative Agent shall have received, on behalf A Certificate of itself and the Incremental Lenders, a favorable written opinion Secretary of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory the Borrower certifying as to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Dateresolutions of the board of directors of the Borrower approving the execution and delivery of this Amendment, (ii) addressed the fact that the articles of incorporation and bylaws of the Borrower, which were certified and delivered to the Administrative Agent Lender pursuant to the Certificate of Authority of the Borrower's secretary or assistant secretary dated as of October 9, 1998 in connection with the execution and delivery of the Incremental Lenders Credit Agreement continue in full force and effect and have not been amended or otherwise modified except as set forth in the Certificate to be delivered, and (iii) covering such matters relating certifying that the officers and agents of the Borrower who have been certified to the Loan Documents Lender, pursuant to the Certificate of Authority of the Borrower's secretary or assistant secretary dated as of October 9, 1998, as being authorized to sign and to act on behalf of the Administrative Agent Borrower continue to be so authorized or setting forth the Incremental Lenders shall reasonably requestsample signatures of each of the officers and agents of the Borrower authorized to execute and deliver this Amendment and all other documents, agreements and Terex hereby requests such counsel to deliver such opinioncertificates on behalf of the Borrower.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy An opinion of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate Borrower's counsel as to the good standing of Terex as of a recent date from such Secretary of State; (iimatters set forth in paragraphs 7(a) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A7(b) that attached thereto is a true hereof and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents matters as the Incremental Lenders or the Administrative Agent may reasonably requestLender shall require.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit and Security Agreement (Royal Precision Inc)
Conditions Precedent. The obligation of This Agreement is conditioned upon, and shall become effective upon, the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedent:conditions, in form and substance satisfactory to the Agent in its discretion (as applicable):
(a) On the Incremental Term Loan Closing Date, each receipt by Agent of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.following:
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy counterpart of this Agreement duly executed by the Borrower and each Lender set forth on the signature pages hereto;
(ii) a counterpart of the Consent of the Guarantors substantially in the form attached hereto;
(iii) Notes executed by the Borrower, payable to each Incremental Lender in the amount of such Incremental Lender’s “Lender Commitment” as set forth on Schedule II hereto;
(iv) a certificate executed by the Secretary or Assistant Secretary of each Obligor dated as of the date hereof as to the resolutions of such Person authorizing the execution of this Agreement and any other Credit Documents executed in connection herewith, and as to the incumbency of the officers of such Person;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of incorporationlimited partnership, including all amendments thereto, declaration of Terex, trust or other comparable organizational instrument (if any) of each Obligor certified as of a recent date by the Secretary of State of the State state of Delaware, and formation of such Obligor;
(1) a certificate from the Secretary of State or other appropriate public official of the state of organization of each Obligor as to the continued existence and good standing of Terex as of a recent date from such Secretary of State; Obligor and (ii2) a certificate from the appropriate public official of every state where the location of the Secretary or Assistant Secretary Obligor’s Property requires it to be qualified to do business as to the due qualification and good standing of Terex dated such Obligor;
(vii) an Officer’s Certificate in the form of Exhibit A to the Amended Credit Agreement for the calendar quarter ending September 30, 2022 calculated on a pro forma basis after giving effect to this Agreement (including the First Amendment Incremental Term Loan Closing Date Commitment) and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date any other Indebtedness incurred prior to the date of Closing Date or that is contemplated to be incurred within 30 days after the resolutions described Closing Date;
(viii) a legal opinion from independent counsel for the Obligors as to the matters set forth on Exhibit D to the Amended Credit Agreement in clause (B) below, (B) that attached thereto is a true connection with the execution and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunderany other Credit Documents executed and delivered in connection therewith, and that the performance of the Obligors’ obligations hereunder and thereunder; and
(ix) such resolutions have not been modifieddocumentation and other information requested by Lenders in connection with applicable “know your customer” and anti-money laundering rules and regulations, rescinded or amended including the USA Patriot Act;
(b) the representations and are warranties contained in full force Section 4 hereof shall be true and effect, (C) that the certificate of incorporation of Terex has not been amended since correct on the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terexhereof; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.and
(ec) The Incremental Lenders the Borrower shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. reimbursed Agent and guaranteed by Reggiane Cranes & Plants S.pPNC Capital Markets LLC for all reasonable out-of-pocket attorneys’ fees and expenses incurred in connection with this Agreement.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be amendments set forth herein is subject to the fulfillment, to the satisfaction of the Administrative Agent and its counsel, of the following conditions precedentprecedent on or before the Effective Date:
(a) On The Administrative Agent shall have received the Incremental Term Loan Closing Datefollowing, each all of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement which shall be satisfiedin form and substance satisfactory to the Administrative Agent and shall be duly completed and executed by the Borrower, and each of the Administrative Agent and the Incremental Lenders shall have received Lenders, as applicable:
(i) This Agreement;
(ii) Copies, certified by an officer of the Borrower as of a recent date, of resolutions of the board of directors of the Borrower in effect on the date hereof authorizing the execution, delivery and performance of this Agreement and the other documents and transactions contemplated hereby and the performance of the Amended Credit Agreement;
(iii) Copies, certified by an officer of the Borrower as of a recent date, of the certificate of formation and limited liability company agreement of the Borrower as in effect on the Effective Date, or a certificate stating that there have been no changes to that effect any such documents since the most recent date true and correct copies thereof were delivered to the Administrative Agent;
(iv) A good standing certificate for the Borrower in the State of its formation dated as of a recent date;
(v) An executed legal opinion of counsel to the Borrower, reasonably satisfactory in form and substance to the Administrative Agent and its counsel;
(vi) If the Borrower qualifies as a legal entity customer under the Beneficial Ownership Regulations, an executed Certificate of Beneficial Ownership for the Borrower and, in any case, such date other documentation and executed other information requested by a Financial Officer of Terexthe Administrative Agent and the Lenders in connection DMFIRM #400135931 v4 with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; and
(vii) Such additional documents, certificates and information as the Administrative Agent or the Lenders may require pursuant to the terms hereof or otherwise reasonably request.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreementsuch fees as shall have been agreed.
(c) The Administrative Agent shall have received, on behalf to the extent invoiced, reimbursement of itself all fees and the Incremental Lenders, a favorable written opinion expenses of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory counsel to the Administrative Agent and required to be paid or reimbursed by the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy Borrower hereunder. All of the certificate of incorporationforegoing fees shall be in all respects, including all amendments theretofully earned, of Terex, certified as of a recent date by due and payable on the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Effective Date and certifying (A) that attached thereto is a true non-refundable and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestnon- creditable thereafter.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation satisfaction (or waiver in writing by Lender) of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction each of the following shall constitute conditions precedent:precedent to the effectiveness of the Amendment (such date being the “First Amendment Effective Date”):
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement Lender shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporationthis Amendment, including all amendments thereto, of Terex, certified as of a recent date duly executed by the Secretary of State of the State of Delaware, parties hereto; and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate the reaffirmation and consent of each Guarantor attached hereto as Exhibit A, duly executed by the parties hereto;
(b) Lender shall have received that certain Second Amended and Restated Fee Letter, dated as of the Secretary or Assistant Secretary of Terex dated date hereof (the Incremental Term Loan Closing Date “Fee Letter”), in form and certifying (A) that attached thereto is a true substance satisfactory to Lender, duly executed and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted delivered by the board of directors of Terex authorizing the execution, delivery parties thereto and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are Fee Letter shall be in full force and effect;
(c) Lender shall have received a First Amendment to Loan and Security Agreement, Amended and Restated Fee Letter, and reaffirmation and consent of each Guarantor, in each case in respect of the Term Debt Documents and duly executed by the parties hereto;
(Cd) that the certificate Lender shall have received a fully-executed engagement letter between Solutions and Huron Consulting Services LLC in form and substance reasonably satisfactory to Lender;
(e) No Default or Event of incorporation of Terex has not been amended since Default shall have occurred or be continuing on the date hereof nor shall either result from the consummation of the last amendment thereto shown on transactions contemplated herein;
(f) Borrower shall have paid, or made arrangements for the certificate payment simultaneously herewith to Lender of good standing furnished pursuant to clause all reasonable and documented out-of-pocket third party expenses (including legal fees and other disbursements and expenses) incurred by Lender (i) aboveprior to the date hereof and (ii) in connection with all this Amendment;
(g) After giving effect to this Amendment, the representations and warranties contained herein, in the Loan Agreement, and in the other Loan Documents, in each case shall be true and correct in all material respects (Dexcept that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof, as though made on and as of such date (except to the extent that such representation and warranties related solely to an earlier date, in which case such representations and warranties shall continue to be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date); and
(h) Lender shall have received (i) evidence satisfactory to Lender that Borrower has received cash in an amount not less than $1,000,000 from ▇▇▇▇ Family Capital Management, Inc. in the incumbency form of the proceeds of a subordinated loan constituting Subordinated Debt, (ii) copies of the executed Subordinated Debt Documents evidencing such Subordinated Debt and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency Second Amended and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; Restated Subordination Agreement between Lender and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable ▇▇▇▇ Family Capital Management, Inc. in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect the increased amount of such guarantees remain outstandingSubordinated Debt.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentdate first set forth above when:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and (or the Incremental Lenders Collateral Agent, as appropriate) shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 all of the Credit Agreement.
(c) The Administrative Agent shall have receivedfollowing, on behalf of itself each dated the date hereof, in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance satisfactory to the Administrative Agent and in the Incremental Lenders, number of originals requested by the Administrative Agent:
(i) dated this Amendment, duly executed by the Incremental Term Loan Closing DateBorrower, the Guarantors, the Banks and the Administrative Agent;
(ii) addressed a Note executed by the Borrower payable to the order of each Bank requesting a Note in the amount of its Commitment;
(iii) an executed copy of an amendment to the Note Agreement in form and substance satisfactory to the Administrative Agent Agent, permitting the transactions contemplated hereby and by the Incremental Lenders other Credit Documents (the “Amendment to Note Agreement”);
(iv) a certificate dated as of the Second Amendment Effective Date from a Responsible Officer stating that after giving effect to the consent and waiver set forth in Section 2.02 hereof (A) all representations and warranties of the Borrower set forth in this Agreement and each of the other Credit Documents to which it is a party are true and correct in all material respects; (B) no Default has occurred and is continuing; and (iiiC) covering such matters relating the conditions in this Section 2.03 have been met or waived;
(v) a certificate dated as of the Second Amendment Effective Date from the Chief Financial Officer of the Borrower as to Solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Chief Acquisition;
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (iivi) a certificate of the Secretary secretary or Assistant Secretary assistant secretary of Terex dated the Incremental Term Loan Closing Ultimate General Partner certifying as of the Second Amendment Effective Date and certifying to (A) that attached thereto is a true and complete copy the existence of the by-laws of Terex as in effect on Borrower and the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowGeneral Partner, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effectBorrower Partnership Agreement, (C) that the certificate General Partner’s organizational documents, (D) the Ultimate General Partner’s organizational documents, (E) the resolutions of incorporation of Terex has not been amended since the Ultimate General Partner approving the Chief Acquisition, this Amendment and the other Credit Documents executed and delivered on or before the date of such certificate, and (F) all documents evidencing other necessary corporate, partnership or limited liability company action and governmental approvals, if any, with respect to this Amendment and the last amendment thereto shown other Credit Documents executed and delivered on or before the certificate date of such certificate;
(vii) certificates of good standing furnished pursuant to clause and existence for the Borrower, the General Partner and the Ultimate General Partner from the applicable state in which the Borrower, the General Partner and the Ultimate General Partner is organized;
(iviii) abovea favorable opinion of B▇▇▇▇ B▇▇▇▇ L.L.P., and (D) as outside Texas counsel to the incumbency Borrower and specimen signature of each officer executing this Agreement on behalf of Terex; the Guarantors;
(iiiix) a certificate of another officer as to the incumbency and specimen signature copies of the Secretary or Assistant Secretary executing Chief Purchase and Sale Agreement together with the certificate pursuant to exhibits and schedules thereto certified by a Responsible Officer as being true and correct copies of such documents as of the date hereof; and
(ii) above; and (ivx) such other documents documents, governmental certificates, agreements and lien searches as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The (a) This Agreement and the obligation of the Incremental Term Lenders to make the Initial Incremental Term Loans hereunder shall become effective on the date (the “Incremental Term Facility Effective Date”) that the Borrower has delivered to the Administrative Agent (which date shall be subject to satisfaction no later than July 17, 2015):
(i) a certificate of a Responsible Officer of the following conditions precedent:
Borrower certifying that (i) before and after giving effect to the making of the Incremental Term Loans no Default or Event of Default shall exist, (ii) the representations and warranties contained in Article V of the Credit Agreement, in the other Loan Documents and in any document furnished under or connection therewith are true and correct on and as of the Incremental Term Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) On 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 of the Credit Agreement and (iii) since December 31, 2014 no Material Adverse Effect has occurred;
(ii) an Omnibus Reaffirmation duly executed by the Credit Parties and dated the Incremental Term Loan Closing Facility Effective Date.
(iii) certificates, each resolutions and other documents of the conditions set forth Loan Parties of the type referred to in paragraphs Sections (bviii) and (cix) of Section 4.01 of the Credit Agreement shall be satisfiedin form and substance reasonably satisfactory to the Administrative Agent;
(iv) an amendment reflecting the amendment of the obligations contemplated hereby (the “Mortgage Amendment”), in form and each of substance reasonably satisfactory to the Administrative Agent and the Incremental Lenders shall have received a certificate Term Lender, with respect to that effect dated such date the Mortgaged Property, duly executed and executed delivered by a Financial Responsible Officer of Terex.and in form suitable for filing and recording in such filing or recording offices that the Administrative Agent reasonably deems necessary;
(bv) The Administrative Agent favorable opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender party hereto, in form and substance reasonably satisfactory to the Administrative Agent;
(vi) an opinion with respect to the Mortgage Amendment from local counsel to the Borrower addressed to the Administrative Agent and each of Terexthe Lenders and dated the date of the Mortgage Amendment, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) each Loan Party shall have received all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of this Agreement and the transactions and other agreements contemplated herein and all such consents, licenses and approvals shall be in full force and effect;
(viii) the Borrower shall have paid all fees and expenses required to be paid on the Incremental Term Facility Effective Date, including all fees and expenses payable to the Incremental Term Lender;
(ix) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by MDDC) and evidence of flood insurance reasonably satisfactory to the Administrative Agent and otherwise in conformance with applicable law in the event the Mortgaged Property is in an area designated by the Secretary of Housing and Urban Development as a special flood hazard area; and
(x) a duly completed Compliance Certificate for the fiscal quarter ending March 31, 2015.
(b) The obligation of the Incremental Lenders, Term Lenders to make any Incremental Term Loan shall be subject to the conditions precedent set forth in Section 4.02 of the Credit Agreement as well as the following additional conditions precedent:
(i) dated a Request for Credit Extension requesting the borrowing of such Incremental Term Loans, which shall have been delivered at least five Business Days prior to the applicable borrowing date;
(ii) evidence in form and substance reasonably satisfactory to the Administrative Agent that the net proceeds of such Incremental Term Loan will be applied as required by the Credit Agreement and this Agreement;
(iii) endorsements to the title insurance policy of the type referred to in subsection (v) of Section 4.01(a) of the Credit Agreement in form and substance reasonably satisfactory to the Administrative Agent;
(iv) a certificate of a Responsible Officer of the Borrower certifying that (i) before and after giving effect to the making of the Incremental Term Loan Closing DateLoans no Default or Event of Default shall exist, (ii) addressed the representations and warranties contained in Article V of the Credit Agreement, in the other Loan Documents and in any document furnished under or connection therewith are true and correct on and as of the applicable Borrowing Date, except to the Administrative Agent extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the Incremental Lenders 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 of the Credit Agreement and (iii) covering such matters relating since December 31, 2014 no Material Adverse Effect has occurred; and
(v) an Additional First Lien Joinder Agreement with respect to the Loan Documents as Incremental Term Facility, dated on or prior to the Initial Borrowing Date, duly executed by the Administrative Agent or Agent, in its capacity as Authorized Representative for the Incremental Lenders shall reasonably requestTerm Facility, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative the Collateral Agent and the Incremental Lenders shall Administrative Agent, in its capacity as Authorized Representative for the Revolving Credit Facility and for each have received (i) a copy Existing Term Facility in effect as of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestInitial Borrowing Date.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Lender Joinder Agreement and Refinancing Amendment (Marina District Finance Company, Inc.)
Conditions Precedent. The obligation It shall be a condition precedent to the effectiveness of this Amendment No. 3 and to the amendment of terms of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentExisting Credit Agreement as herein set forth that:
(ai) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative The Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself the Banks, on or before the Amendment Effective Date (as hereinafter defined) the following items, each, unless otherwise indicated, dated on or before the Amendment Effective Date and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, in form and substance satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.its counsel:
(dA) The Administrative Agent and the Incremental Lenders shall each have received A duly executed counterpart original of this Amendment No. 3;
(iB) a A copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State corporate action of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of Borrower certified by the Secretary or Assistant Secretary of Terex the Borrower to authorize the execution and delivery of, and performance under, this Amendment No. 3 and the other Amendment No. 3 Loan Documents to which it is a party;
(C) A certificate of the secretary or assistant secretary of the Borrower certifying the names of the persons authorized to sign this Amendment No. 3 and the other Amendment No. 3 Loan Documents to which it is a party, and all other documents and certificates delivered hereunder together with the true signatures of such persons;
(D) A certificate of the Chief Financial Officer of the Borrower certifying that the statements set forth in Section 3.05(ii) of this Amendment No. 3, as of the Amendment No. 3 Closing Date, are true and correct; and
(E) Except for events disclosed in the Borrower’s Annual Report on Form 10-K for the year ended December 31, 2000, and for Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001 and June 30, 2001, no event has occurred to the Borrower which would reasonably be likely to have a Material Adverse Effect on the Borrower; and there shall be delivered to the Agent for the benefit of each Bank and the Agent a certificate dated the Incremental Term Loan Closing Date and certifying signed by the Chief Executive Officer, President, Chief Financial Officer or Vice President of the Borrower to such effect;
(ii) The following statements shall be true and correct on the Amendment Effective Date and the Agent shall have received a certificate signed by an authorized officer of the Borrower, dated the Amendment Effective Date, stating that:
(A) that attached thereto is a the representations and warranties contained in Section 2.01 of this Amendment No. 3 and in the other Loan Documents, as amended hereby, with respect to the Borrower are true and complete copy correct on and as of the by-laws Amendment Effective Date as though made on and as of Terex as such date;
(B) no Event of Default, or event which, with the passage of time or the giving of notice or both, would become an Event of Default, has occurred and is continuing, or would result from the execution of this Amendment No. 3;
(C) the Borrower has in effect all material respects performed all agreements, covenants and conditions required to be performed on the Incremental Term Loan Closing Date and at all times since a date or prior to the date of hereof under the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; other Loan Documents;
(iii) a certificate For purposes of another officer as to the incumbency and specimen signature this Amendment No. 3, upon completion of the Secretary or Assistant Secretary executing conditions set forth above in this Section 3.05, the certificate pursuant term “Amendment Effective Date” shall mean, and the effective date of this Amendment No. 3 shall be deemed to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestbe, September 30, 2001, nunc pro tunc.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of This Second Amendment shall not become effective until the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction date on which each of the following conditions precedent:are satisfied (or waived in accordance with Section 8.1) (the "Second Amendment Effective Date"):
6.1 The Administrative Agent shall have received from the Majority Banks and the Borrower, counterparts (a) On in such number as may be requested by the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (cAdministrative Agent) of Section 4.01 this Second Amendment signed on behalf of the Credit Agreement shall be satisfied, and each of the such Persons.
6.2 The Administrative Agent and the Incremental Lenders shall have received a certificate to that effect of the Borrower dated such date and executed as of the Second Amendment Effective Date (in sufficient copies for each Bank) signed by a Financial Responsible Officer of Terex.
the Borrower (1) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such extension or confirming that those previously delivered pursuant to Section 3.1 remain in full force and effect and have not been amended or rescinded, as the case may be, and (2) certifying that, (a) before and after giving effect to such extension, the representations and warranties contained in Article IV made by it are true and correct on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, (b) The Administrative Agent before and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions after giving effect to such extension no Event of Section 2.03 of the Credit Agreement.
Default exists or will exist, and (c) since (1) the most immediately preceding March 31 or (2) the filing of a Form 8-K pertaining to any such type of event which was filed after such March 31 and prior to the date 30 days preceding the Second Amendment Effective Date, whichever shall later occur, there has not occurred an event, development or circumstance that has had or would reasonably be expected to have, a material adverse effect on the consolidated financial position or consolidated results of operations of the Borrower and its Subsidiaries taken as a whole.
6.3 The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, received a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders Banks and (iiidated the Second Amendment Effective Date) covering such matters relating of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., in form and substance satisfactory to the Loan Documents Administrative Agent.
6.4 The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Banks and dated the Second Amendment Effective Date) of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Senior Vice President and General Counsel of the Borrower, in form and substance satisfactory to the Administrative Agent.
6.5 The Administrative Agent shall have received such other documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such special counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of the Incremental Lenders Lender to make Incremental the Term Loans hereunder shall be Loan to the Borrower on the Effective Date is subject to the satisfaction of the following conditions precedentconditions:
(a) On the Incremental Term Loan Closing Date, each fact that no Event of Default shall have occurred and be continuing or would result from the making of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Term Loan;
(b) The Administrative Agent the fact that all representations and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 warranties of the Borrower contained in this Agreement and in the other Credit Agreement.Documents shall be true on and as of the Effective Date;
(c) The Administrative Agent the fact that no Material Adverse Effect shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.occurred;
(d) The Administrative Agent all legal, tax, business and other due diligence with respect to the business, assets, liabilities, operations, corporate structure and tax characteristics of the Borrower shall be satisfactory to the Lender;
(e) all legal matters incident to this Agreement, the other Credit Documents and the Incremental Lenders transactions contemplated hereby and thereby shall each have received be reasonably satisfactory to counsel for the Lender;
(f) receipt by the Lender of (i) a copy of the Borrower’s certificate of incorporationformation, including all amendments thereto, of Terexas amended, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of StateTexas; (ii) a certificate of such office, dated as of a recent date, as to the existence and charter documents of the Borrower on file; and (iii) a certificate of the Secretary or an Assistant Secretary of Terex the Borrower dated as of the Incremental Term Loan Closing Effective Date and certifying (A) that the certificate of formation of the Borrower has not been amended since the date of the last amendment thereto indicated on the certificate furnished pursuant to clause (ii) above, (B) as to the absence of dissolution or liquidation proceedings by or against the Borrower, (C) that attached thereto is a true and complete copy of the by-laws limited liability company agreement of Terex the Borrower as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowsuch certification, (BD) that attached thereto is a true true, correct and complete copy of resolutions duly adopted by the board of directors or similar governing body of Terex the Borrower authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, other Credit Documents to which the Borrower is a party and that such said resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since effect on the date of the last amendment thereto shown on the such certificate of good standing furnished pursuant to clause (i) above, and (DE) as to the incumbency and specimen signature signatures of each officer of the Borrower executing this Agreement on behalf and the other Credit Documents to which it is a party, or any other document delivered in connection herewith or therewith;
(g) receipt by the Lender of Terex; (iii) a certificate executed copies of another officer as the Collateral Documents granting to the incumbency and specimen signature Lender a Lien in all the Collateral described therein, subject only to Permitted Liens;
(h) receipt by the Lender of each document (including, without limitation, each Uniform Commercial Code financing statement) required by law or reasonably requested by the Lender to be filed, registered or recorded in order to create in favor of the Secretary or Assistant Secretary executing Lender a perfected security interest in the certificate pursuant Collateral, subject only to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.Permitted Liens;
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) receipt by the bonds issued Lender of reports of Uniform Commercial Code Lien searches conducted by Fantuzzi Finance S.A. an independent search service with respect to the Borrower and guaranteed the information disclosed in such reports shall be satisfactory to the Lender;
(j) receipt by Reggiane Cranes & Plants S.p.A. the Lender of evidence of the insurance required by the Credit Documents;
(k) payment by the Borrower of all fees and other amounts due and payable on or prior to the Effective Date, including, without limitation, the facility fee set forth in Section 2.10 above, together with reimbursement of and all expenses of the Lender incurred in connection with this Agreement (including the reasonable fees and expenses of legal counsel);
(l) receipt by the Lender of evidence satisfactory that the proceeds of the Term Loan are sufficient to pay all amounts that are past due and owing to the Senior Lender under the Senior Credit Agreement, together with evidence satisfactory to the Lender that upon the Effective Date, all such past due amounts will be paid in full by the Borrower with the proceeds of the Term Loan;
(m) the Lender and the Senior Lender shall have been discharged entered into the Subordination Agreement, in full form and no amounts payable substance satisfactory to the Lender;
(n) receipt by the Lender of a duly executed amendment to the Senior Credit Agreement, permitting, among other matters, the borrowing of the Term Loan by the Borrower hereunder and the granting of the Liens pursuant to the Collateral Documents, in respect form and substance satisfactory to the Lender;
(o) receipt by the Lender of such bonds remain outstanding a duly executed warrant by Pledgor, in form and substance satisfactory to the Lender; and
(iip) any guarantees receipt by the Lender of all other documents it may reasonably request relating to such bonds any other matters relevant hereto or thereto, all in form and substance satisfactory to the Lender. All documents referred to in this Article shall have been irrevocably cancelled be in form and no amounts payable in respect of such guarantees remain outstandingsubstance satisfactory to the Lender and its counsel.
Appears in 1 contract
Sources: Second Lien Term Loan Agreement (Summer Energy Holdings Inc)
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder amendments set forth in Section 2 shall be subject to become effective upon satisfaction of the following conditions precedent:(the first date on which all of the following conditions have been satisfied being referred to herein as the “Fourth Amendment Effective Date”):
(a) On The Administrative Agent shall have received counterparts of this Amendment executed by the Incremental Term Loan Closing Borrower, the Administrative Agent and the Lenders.
(b) The representations and warranties set forth in this Amendment shall be true and correct in all material respects on the Fourth Amendment Effective Date.
(c) No Default or Event of Default shall have occurred and be continuing as of the Fourth Amendment Effective Date.
(d) The Administrative Agent and the Lenders shall have received, each of the following in form and substance reasonably satisfactory to the Administrative Agent and the Lenders:
(i) a favorable written opinion of ▇▇▇▇▇▇ LLP, counsel to the Borrower (A) dated the Fourth Amendment Effective Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such matters relating to the Loan Parties, the Loan Documents and the Transactions as the Administrative Agent or the Required Lenders shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion;
(ii) a certificate of the Secretary or Assistant Secretary of each Loan Party, dated the Fourth Amendment Effective Date and certifying (A) that the copies of the certificate or articles of incorporation and by-laws (or the equivalent thereof) of such Loan Party provided on the Closing Date continue to be true and correct copies thereof as in effect on the Fourth Amendment Effective Date (or, if any such organizational documents have been amended or modified, that attached thereto are true and correct copies of such organizational documents as in effect on the Fourth Amendment Effective Date) and (B) that attached thereto are true and complete copies of resolutions duly adopted by the board of directors of such Loan Party and continuing in effect, which authorize the execution, delivery and performance by such Loan Party of this Amendment, the borrowing of the Delayed No. 4 Term Loans and the consummation of the transactions contemplated hereby; and
(iii) a certificate, dated as of the Fourth Amendment Effective Date and signed by a Financial Officer of the Borrower, (A) confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Section 4.01 of the Credit Agreement shall be satisfied, 5 and (B) certifying that each of the Loan Parties after giving effect to the borrowing of the Delayed No. 4 Term Loans is solvent.
(e) The Administrative Agent and the Incremental Lenders shall have received a certificate the Amendment Fee (for the benefit of the Lenders) referred to that effect dated such date and executed by a Financial Officer of Terexin Section 6 below.
(bf) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory all other fees and other amounts due and payable on or prior to them that (i) the bonds issued Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pthe Borrower under any Loan Document.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall be effective when the Lender shall have received an executed original hereof, together with each of the Incremental Lenders following, each in substance and form acceptable to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentLender in its sole discretion:
(a) On the Incremental Term Loan Closing DateThe Revolving Note, each duly executed on behalf of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of TerexBorrower.
(b) The Administrative Agent Acknowledgment and Agreement of Guarantors set forth at the Incremental Lenders shall end of this Amendment, duly executed by each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit AgreementGuarantor.
(c) The Administrative Agent shall have receivedStock Pledge Agreement, on behalf of itself and duly executed by the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionBorrower.
(d) The Administrative Agent Subordination Agreement of ▇▇▇▇▇▇▇ ▇. Call, in form and substance acceptable to the Incremental Lenders shall each have received Lender.
(e) A Certificate of the Secretary of the Borrower certifying as to (i) a copy the resolutions of the board of directors of the Borrower approving the execution and delivery of this Amendment, (ii) the fact that the articles of incorporation and bylaws of the Borrower, which were certified and delivered to the Lender pursuant to the Certificate of Authority of the Borrower’s secretary or assistant secretary dated October 24, 2006 continue in full force and effect and have not been amended or otherwise modified except as set forth in the Certificate to be delivered, and (iii) certifying that the officers and agents of the Borrower who have been certified to the Lender, pursuant to the Certificate of Authority of the Borrower’s secretary or assistant secretary dated December 29, 2006, as being authorized to sign and to act on behalf of the Borrower continue to be so authorized or setting forth the sample signatures of each of the officers and agents of the Borrower authorized to execute and deliver this Amendment and all other documents, agreements and certificates on behalf of the Borrower.
(f) Payment of the fee described in Paragraph 20.
(g) Evidence of the dissolution of Environmental Venture Partners LLC satisfactory to the Lender.
(h) Evidence of name changes set forth in Paragraph 16 satisfactory to the Lender.
(i) Current searches of appropriate filing offices showing that no Liens have been filed and remain in effect against Pure Earth Transportation and Disposal, Inc., and Pure Earth Materials, Inc. except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of proceeds of the initial Advances, they will satisfy, release or terminate such Liens in a manner satisfactory to the Lender.
(j) A current certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date issued by the Secretary of State of Delaware relating to Pure Earth Transportation and Disposal, Inc. and the Secretary of State of DelawarePennsylvania relating to Pure Earth Materials, Inc. certifying that Pure Earth Transportation and Disposal, Inc., and Pure Earth Materials, Inc. are in compliance with all applicable subsistence requirements of the States of Delaware and Pennsylvania.
(k) Certificates of the insurance required under the Credit Agreement, with all hazard insurance containing a certificate as lender’s loss payable endorsement in the Lender’s favor subject to the good standing rights of Terex any Person having security interests in assets of Pure Earth Transportation and Disposal, Inc., and Pure Earth Materials, Inc. senior in priority to the right therein in favor of Lender and with all liability insurance naming the Lender as of a recent date from such Secretary of State; an additional insured.
(iil) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a A true and complete correct copy of the by-laws closing binder(s) evidencing the Borrower’s acquisition of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior Target Companies, including but not limited to the date Stock Purchase Agreement dated as of March 30, 2007 among the resolutions described in clause (B) belowBorrower, (B) that attached thereto is a true the Target Companies and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request▇▇▇▇▇▇▇ ▇. Call.
(em) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) Such other matters as the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pLender may require.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation As conditions precedent to the Banks' execution and delivery of this Amendment, the Incremental Lenders to make Incremental Term Loans hereunder Agent shall be subject to satisfaction of have received the following conditions precedentin form and substance satisfactory to the Banks:
(a) On the Incremental Term Loan Closing Date, each A certificate of the president, chief executive officer or chief financial officer of each Obligor as of the date of execution and delivery by the Obligors of this Amendment stating that (1) the representations and warranties contained in Section 7 of this Amendment are true and correct, (2) all obligations, covenants, agreements and conditions set forth contained in paragraphs the Agreement to be performed or satisfied by such Obligor on or prior to the date of execution and delivery by the Obligors of this Amendment have been performed or satisfied in all respects, (b3) since June 30, 1995, there has been no material adverse change in the properties, business, operations, assets, condition (financial or otherwise) or prospects of such Obligor (or, in the case of the certificate of the respective officer of the Company, the Consolidated Companies taken as a whole) other than as disclosed in such certificate, and (c4) after giving effect to this Amendment, no Default or Event of Section 4.01 of the Credit Agreement shall be satisfied, Default has occurred and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.is continuing;
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written An opinion of Haythe & Curley, New York, New York, counsel to the Obligors, ▇▇ ▇▇▇ ef▇▇▇▇ ▇▇▇▇▇hat (1) the execution and delivery by the Obligors of this Amendment has been duly authorized by all requisite corporate action, General Counsel (2) this Amendment has been duly executed and delivered by the Obligors and constitutes the legal, valid and binding obligation of Terexthe Obligors enforceable against the Obligors in accordance with its terms, satisfactory except to the Administrative Agent extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary application of State general principles of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) aboveequity, and (D3) as to the incumbency execution and specimen signature delivery of each officer executing this Agreement on behalf of Terex; (iii) Amendment does not conflict with or constitute a certificate of another officer as to default under the incumbency Life Company Indenture or the Consolidated Companies' Operating Leases with Capstone Capital Corporation and specimen signature Charter Canyon Behavioral Health System, Inc. or the Consolidated Companies have otherwise obtained all requisite consents of the Secretary or Assistant Secretary executing the certificate pursuant parties to such agreements in connection with this Amendment; and
(iic) above; Such other documents, certificates and (iv) such other documents opinions of counsel as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation effectiveness of this Amendment and the obligations of the Incremental Lenders to make Incremental Term Loans Bank hereunder shall be are subject to the satisfaction of the following conditions precedentprecedent on or before the date hereof:
A. The Borrower will have duly executed and delivered or caused to have been delivered each of the following:
(i) a fully-executed and complete copy of this Amendment;
(ii) the Amended and Restated Revolving Note;
(iii) opinion letter(s) of counsel to the Borrower reasonably satisfactory to the Bank;
(iv) a closing certificate: (a) On the Incremental Term Loan Closing Date, each attaching copies of the conditions set forth in paragraphs Operative Documents and the certificate of incorporation for the Borrower, or certifying that there have been no changes to the Operative Documents and the certificate of incorporation for the Borrower previously delivered to Bank, and (b) a copy of the Borrower’s resolutions adopted authorizing the execution, delivery and performance of the Amendment and the other Loan Documents;
(v) A good standing certificate (or comparable certificate) from the applicable jurisdiction of organization for the Borrower;
(vi) A Borrowing Base Certificate; and
(vii) Such other information and documents as may reasonably be required by the Bank and its counsel.
B. The Borrower shall have (i) paid to Bank an upfront fee in the amount of $12,500.00, and (cii) of Section 4.01 paid and/or reimbursed all other invoiced fees, costs and expenses owed to the Bank pursuant to the Loan Agreement, including the fees and disbursements invoiced through the date hereof of the Credit Agreement shall be satisfiedBank’s special counsel, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of M▇▇▇▇ ▇▇▇▇▇▇ LLP.
C. The following statements shall be true and correct and Borrower, General Counsel of Terex, satisfactory by executing and delivering this Amendment to the Administrative Agent Bank, hereby certifies that the following statements are true and correct as of the Incremental Lenders, date hereof:
(i) dated The representations and warranties set forth in Section 7 of the Incremental Term Loan Closing Date, Agreement and each other Loan Document are true and correct as of the date hereof;
(ii) addressed to the Administrative Agent No Event of Default or Material Adverse Effect has occurred and the Incremental Lenders and is continuing; and
(iii) covering such matters relating No consents, approvals, authorizations of, or filings with, notice to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably requestother act by or in respect of, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary any governmental authority or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as any other Person are required in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing connection with the execution, delivery and performance by Borrower of this Agreement and Amendment or the borrowings hereunder, and that such resolutions other Loan Documents or the validity or enforceability against Borrower of this Amendment or the other Loan Documents which have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestobtained.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Revolving Loan Agreement (Runway Growth Credit Fund Inc.)
Conditions Precedent. The obligation This Third Amendment, shall be effective when the Lender shall have received an executed original hereof, together with each of the Incremental Lenders following, each in substance and form acceptable to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentLender in its sole discretion:
(a) On A Certificate of the Incremental Term Loan Closing DateSecretary of Zareba certifying as to (i) the resolutions of the board of directors of Zareba approving the execution and delivery of this Third Amendment, (ii) the fact that the articles of incorporation and bylaws of Zareba, which were certified and delivered to the Lender pursuant to the Certificate of Authority of the Borrower’s secretary or assistant secretary delivered pursuant to the Second Amendment to Credit and Security Agreement, dated as of December 23, 2005, continue in full force and effect, and have not been amended or otherwise modified except as set forth in the Certificate to be delivered, and (iii) certifying that the officers and agents of Zareba who have been certified to the Lender, pursuant to the Certificate of Authority of Zareba’s secretary or assistant secretary delivered pursuant to the Second Amendment to Credit and Security Agreement, as being authorized to sign and to act on behalf of Zareba, continue to be so authorized or setting forth the sample signatures of each of the conditions set forth in paragraphs (b) officers and (c) agents of Section 4.01 Zareba authorized to execute and deliver this Third Amendment and all other documents, agreements and certificates on behalf of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of TerexZareba.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 A Certificate of the Secretary of Waters Medical Systems certifying as to (i) the resolutions of the board of directors of Waters Medical Systems approving the execution and delivery of this Third Amendment, (ii) the fact that the articles of incorporation and bylaws of Waters Medical Systems, which were certified and delivered to the Lender pursuant to the Certificate of Authority of the secretary or assistant secretary of Water Medical Systems delivered pursuant to the Second Amendment to Credit and Security Agreement, dated as of December 23, 2005, continue in full force and effect, and have not been amended or otherwise modified except as set forth in the Certificate to be delivered, and (iii) certifying that the officers and agents of Waters Medical Systems who have been certified to the Lender, pursuant to the Certificate of Authority of the secretary or assistant secretary of Waters Medial Systems delivered pursuant to the Second Amendment to Credit and Security Agreement, as being authorized to sign and to act on behalf of Waters Medical Systems, continue to be so authorized or setting forth the sample signatures of each of the officers and agents of Waters Medical Systems authorized to execute and deliver this Third Amendment and all other documents, agreements and certificates on behalf of Waters Medical Systems.
(c) The Administrative Agent shall have received, on behalf of itself Capex Term Note executed by Zareba and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionWaters Medical Systems.
(d) The Administrative Agent and With respect to the Incremental Lenders shall each have received Mortgaged Real Estate (i) a copy an amendment to the Mortgage making the Capex Term Note and related obligations subject to the lien of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, Mortgage on terms and a certificate as conditions satisfactory to the good standing of Terex as of a recent date from such Secretary of State; Lender and (ii) a certificate endorsements to the title insurance policy issued in connection with the original making of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex Mortgage, as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent Lender may reasonably requestrequire.
(e) The Incremental Lenders shall have received evidence reasonably A pledge agreement in form satisfactory to them that the Lender made by Zareba pursuant to which 65% of the outstanding capital stock of Zareba Canada is pledged to the Lender as security for the Obligations.
(if) Payment of the bonds issued by Fantuzzi Finance S.A. costs and guaranteed by Reggiane Cranes & Plants S.pexpenses described in Section 20.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and
(iig) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingSuch other matters as the Lender may require.
Appears in 1 contract
Conditions Precedent. The obligation This Agreement shall be deemed to be effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be Increase Effective Date, subject to satisfaction the execution and delivery of the following conditions precedentdocuments, each in form and substance satisfactory to the Administrative Agent:
(a) On this Agreement executed and delivered by each Borrower, the Incremental Term Loan Closing DateAdministrative Agent, and the Accordion Lenders;
(b) one or more Notes substantially in the form of Exhibit A to the Credit Agreement issued in favor of each of the conditions set forth in paragraphs Accordian Lenders reflecting their respective Commitments and applicable Tranche and interest rate (b) and the “New Notes”);
(c) a certificate dated as of the date hereof signed by a duly authorized officer of the Trust on behalf of itself, the Borrowers and the Subsidiary Guarantors (i) certifying and attaching the resolutions adopted by its board of directors or trustees authorizing the transactions described herein and evidencing the due authorization, execution and delivery of this Agreement, the New Notes and each of the other Loan Documents executed in connection herewith and of the Increase, (ii) certifying that the Organizational Documents of each Borrower and Guarantor have not been amended, modified or rescinded since the Closing Date and remain in full force and effect as of the date hereof, (iii) certifying that each Borrower and Guarantor is duly formed, validly existing and in good standing under the laws of such entity’s organization, and that there is no pending or to such officer’s knowledge, threatened proceeding for dissolution, liquidation or other similar matter with respect to any Borrower or Guarantor, (iv) certifying that, before and immediately after giving effect to the Increase and this Agreement, (A) the representations and warranties contained in Section 4.01 7 of the Credit Agreement and in the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Agreement, the representations and warranties contained in Section 7.4 shall be satisfied, and each of deemed to refer to the Administrative Agent and the Incremental Lenders shall have received a certificate most recent statements furnished pursuant to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 8.4 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is there has been no material adverse change in the business, assets, operations, condition (financial or otherwise) or properties of the Trust or FPLP or, taken as a true and complete copy of resolutions duly adopted by whole, the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended Potomac Group since the date of the last amendment thereto shown on financial statements most recently delivered to the certificate of good standing furnished Administrative Agent pursuant to clause (i) abovethe Credit Agreement, and (DC) as to the incumbency no Default or Event of Default exists;
(d) an Instrument of Accession executed and specimen signature of delivered by each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.Accordion Lender;
(e) The Incremental Lenders shall have received evidence reasonably satisfactory a Consent and Reaffirmation of Guaranty executed and delivered by the Trust;
(f) a Consent and Reaffirmation of Guaranty executed and delivered by each Subsidiary Guarantor;
(g) a Compliance Certificate substantially in the form of Exhibit C to them that the Credit Agreement;
(h) a favorable opinion of counsel to the Borrowers and Guarantors acceptable to the Administrative Agent with respect to this Agreement and the Increase reflected herein, the New Notes and each Consent and Reaffirmation of Guaranty; and
(i) payment by the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pBorrowers in immediately available funds of the fees agreed to in the fee letter entered into in connection with the Increase.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Commitment Increase Agreement (First Potomac Realty Trust)
Conditions Precedent. The obligation effectiveness of this Amendment and the Incremental Lenders amendments to make Incremental Term Loans hereunder shall be the Existing Credit Agreement set forth herein are subject to the satisfaction of each of the following conditions precedent:(the date of such satisfaction being the “Third Amendment Effective Date”):
(a) On The Administrative Agent’s receipt of the Incremental Term Loan Closing Datefollowing, each of the conditions set forth in paragraphs which shall be originals or telecopies (bfollowed promptly by originals) and (c) of Section 4.01 unless otherwise specified, each properly executed by a Responsible Officer of the Credit Agreement shall be satisfiedsigning Loan Party to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) executed counterparts of this Amendment, executed by the Loan Parties, the Administrative Agent, the Issuing ▇▇▇▇▇▇, and the requisite Lenders;
(ii) a duly executed and completed Loan Request with respect to the Specified Incremental Term Loan; provided that so long as a draft of the Loan Request has been provided to the Administrative Agent and prior to the Incremental Lenders shall have received a certificate Third Amendment Effective Date, the duly executed Loan Request may be provided one (1) Business Day prior to that effect dated such date and the proposed Third Amendment Effective Date;
(iii) Notes duly executed by a Financial Officer each Borrower in favor of Terex.each Lender requesting Notes;
(biv) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of executed ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and joinder agreement by Risk Services Subsidiary joining Risk Services Subsidiary as a Guarantor under the Credit Agreement and the other Loan Documents;
(v) a duly executed Security Agreement Supplement by Risk Services Subsidiary;
(vi) a certificate of each of the Loan Parties signed by a Responsible Officer, General Counsel dated the Third Amendment Effective Date stating that (x) the Loan Parties are in compliance with each of Terexthe covenants and conditions under the Loan Documents, satisfactory (y) no Material Adverse Effect has occurred since the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent and (z) the Incremental Lendersrepresentations and warranties set forth in Section 8(d) and Section 8(e) of this Amendment are true and correct as specified therein;
(vii) a pro forma Compliance Certificate signed by a Responsible Officer of the Borrowing Agent, (i) dated the Third Amendment Effective Date demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Consolidated Net Leverage Ratio does not exceed 3.25 to 1.00, based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, of the Existing Credit Agreement, both before and after giving effect (on a pro forma basis) to (x) the Specified Incremental Term Loan Closing Commitments, (y) the Specified Incremental Revolving Credit Commitments and (z) the making of the Specified Incremental Term Loan and Incremental Loans pursuant to the Specified Incremental Revolving Credit Commitments (with the Specified Incremental Revolving Credit Commitment being deemed to be fully drawn);
(viii) a certificate dated the Third Amendment Effective Date and signed by a Responsible Officer of each of the Loan Parties, certifying as appropriate as to: (A) all action taken by each Loan Party to validly authorize, duly execute and deliver this Amendment (and any other Loan Documents executed and delivered in connection herewith) and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign this Amendment (and any other Loan Documents executed and delivered in connection herewith) and their true signatures; and (C) copies of its organizational documents as in effect on the Third Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Third Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(iiix) a certificate of the chief financial officer of the Borrowing Agent as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Amendment;
(x) written opinion(s) of counsel for the Loan Parties, dated as of the Third Amendment Effective Date, addressed to the Administrative Agent and the Incremental Lenders and in form and substance satisfactory to the Administrative Agent;
(iiixi) covering such matters relating Lien searches in acceptable scope and with acceptable results;
(xii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken;
(xiii) financial projections after giving effect to the Specified Incremental Term Loan Commitment and the Specified Incremental Revolving Credit Commitments (including, without limitation, consolidated forecasted balance sheets, statements of income and statements of cash flows together with a detailed explanation of the assumptions used in preparing such financial projections) of the Borrowers through the Term Loan Maturity Date; and
(xiv) executed counterparts of such other documents as the Administrative Agent may require.
(b) The Loan Parties shall provide to the Administrative Agent and each Lender that so requests, an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(c) The Borrowers shall have paid all fees payable to the Administrative Agent and the Lenders on or before the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionThird Amendment Effective Date.
(d) The Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket 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 or on the date of this Amendment, 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 Borrowers and the Incremental Lenders Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 7, each Lender that has signed this Amendment shall be deemed to have consented to, approved or 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 Administrative Agent shall have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date notice from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date Lender prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestproposed Third Amendment Effective Date specifying its objection thereto.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall be effective upon the satisfaction by the Borrower of, or written waiver by the Credit Agent and the Lenders of, the following conditions, and any other conditions set forth in this Amendment, by no later than 4:00 p.m. (Boston time) on the date of this Amendment, as such time and date may be extended in writing by the Credit Agent and the Lenders, in their sole discretion (with the date, if at all, by which such conditions have been satisfied or waived being referred to herein as, the “Effective Date”), failing which this Amendment and all related documents shall be null and void at the option of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of Credit Agent and the following conditions precedentLenders:
(a) On Delivery by the Incremental Term Borrower to the Credit Agent and each Lender of the following:
(i) This Amendment, duly executed by the Borrower, the Credit Agent and each Lender.
(ii) Such certificates of resolutions or other actions, incumbency certificates and/or other certificates of an authorized officer of the Borrower as the Credit Agent may require evidencing (A) the authority of the Borrower to enter into this Amendment and any other documents to be executed and delivered in connection herewith, and (B) the identity, authority and capacity of each officer of the Borrower authorized to act on its behalf in connection with this Amendment and the other Loan Closing Documents.
(iii) A copy of the Borrower’s certificate of formation and limited liability company agreement, as amended and in effect on the Effective Date, each certified by an appropriate officer of the conditions set forth Borrower.
(iv) An opinion of counsel to the Borrower in paragraphs (b) form and (c) of Section 4.01 of substance satisfactory to the Credit Agreement shall Agent.
(v) Fee letters (the “Amendment Fee Letters”) setting forth certain fees to be satisfiedpaid by the Borrower, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and duly executed by a Financial Officer of Terexthe Borrower.
(vi) Such other documents as the Credit Agent or any Lender reasonably may require, duly executed and delivered.
(b) The Administrative Agent and the Incremental Lenders Borrower shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of paid to the Credit AgreementAgent all fees due on or before the Effective Date pursuant to the Amendment Fee Letters.
(c) The Administrative Agent No Default or Event of Default shall have receivedoccurred and be continuing, on behalf or will be caused by or result from the Borrower’s execution and delivery of itself this Amendment and the Incremental Lendersdocuments, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇instruments, General Counsel of Terexand agreements related hereto, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionperformance by the Borrower of its obligations hereunder or thereunder.
(d) The Administrative Agent representations and warranties of the Incremental Lenders shall each have received Borrower contained in this Amendment or in any document, instrument, or agreement delivered or to be delivered in connection with this Amendment (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged true and correct in full all material respects (other than those which contain a materiality qualifier, which shall be true and no amounts payable correct in respect all respects) on the date that such representations and warranties were made (except for those which expressly relate to an earlier date, which shall be true and correct as of such bonds remain outstanding earlier date), and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled be true and no amounts payable correct in respect all material respects (other than those which contain a materiality qualifier, which shall be true and correct in all respects) on the Effective Date as if made on and as of such guarantees remain outstandingdate (except for those which expressly relate to an earlier date, which shall be true and correct as of such earlier date).
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Walker & Dunlop, Inc.)
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be this Agreement is subject to satisfaction the condition precedent that the Lender shall have received each of the following conditions precedentitems (unless otherwise indicated) dated such date, and in such form and substance, as is satisfactory to the Lender in its sole discretion:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit This Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and duly executed by a Financial Officer of Terex.the Parties;
(b) The Administrative Agent and Note duly executed by the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.Borrower;
(c) The Administrative Agent shall have received, on behalf of itself and Acknowledgment Agreement duly executed by the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.parties thereto;
(d) The Administrative Agent and Control Agreement duly executed by the Incremental Lenders shall parties thereto;
(e) [Reserved];
(f) [Reserved];
(g) A filed UCC-1 financing statement on the Collateral of the Borrower;
(h) A certificate of a secretary or assistant secretary of each have received Loan Party, (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate certifying as to the good standing names and true signatures of Terex the persons authorized on such Loan Party’s behalf to sign, as of a recent date from applicable, this Agreement, the Note and the other Loan Documents to be delivered by such Secretary of State; Loan Party in connection herewith, (ii) a attaching true and correct copies of each Organizational Document of such Loan Party, and (iii) attaching true and correct copies of resolutions of such Loan Party authorizing the Loan Documents;
(i) A certificate of a Responsible Officer of the Secretary Borrower, certifying as to the (i) accuracy and completeness of each of the representations and warranties contained in each Loan Document to which the Borrower is a party, (ii) the absence of a Default or Assistant Secretary Event of Terex dated Default under such Loan Documents to which the Incremental Term Loan Borrower is a party as of the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of pro forma compliance with the by-laws of Terex as financial covenants set forth in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance Section 7.09 of this Agreement and the borrowings hereunderAgreement, including supporting calculations, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex no event has not been amended occurred since the date of the last amendment thereto shown on most recent financial statements upon which such covenant compliance was calculated that would cause the certificate of Borrower to no longer be in compliance with said provisions;
(j) A good standing furnished pursuant to clause (i) aboveor subsistence certificate for each Loan Party, and (D) as to the incumbency and specimen signature evidencing its current good standing, tax qualification and/or subsistence in such Loan Party’s jurisdiction of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.organization;
(ek) The Incremental Lenders shall have received evidence reasonably satisfactory to them that A current Trigger Event Report;
(i1) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.A current Borrowing Base Certificate;
Appears in 1 contract
Sources: Loan and Security Agreement (Rocket Companies, Inc.)
Conditions Precedent. The obligation of This Amendment, and the Incremental Lenders New Lender’s Revolver Commitment to make Incremental Term Loans hereunder under the Loan Agreement, shall be subject to satisfaction become effective as of such date (such date, the “Third Amendment Effective Date”) that each of the following conditions precedent:are satisfied or specifically waived in writing by Agent (with the consent of the Lenders):
(a) On Agent shall have received counterparts of this Amendment, duly executed by the Incremental Term Borrower, the Servicer, the Agent, the Existing Lenders and the New Lender;
(b) Borrower shall have executed and delivered to the New Lender, to the extent the New Lender has so requested a note pursuant to Section 2.1.2 of the Loan Closing Agreement, a promissory note evidencing Borrower’s obligations in respect of the Revolver Commitments of New Lender;
(c) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of Borrower certifying that, after giving effect to this Amendment and the making of the initial Loans after the Third Amendment Effective Date, each (i) Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the conditions representations and warranties set forth in paragraphs Section 8 of the Loan Agreement are true and correct in all material respects on the date hereof (b) except for representations and warranties that expressly relate to an earlier date, and that any representation or warranty which is subject to any materiality qualifier is true and correct in all respects); and (civ) of Section 4.01 of Borrower has complied with all agreements and conditions to be satisfied by it under the Credit Agreement shall be satisfied, and each of the Administrative Transaction Documents;
(d) Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions authorized officer of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have receivedBorrower and Servicer, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, certifying (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent that attached copies of such Person’s Organic Documents are true and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably requestcomplete, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent in full force and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporationeffect, including all amendments thereto, of Terex, certified without amendment except as of a recent date by the Secretary of State of the State of Delawareshown, and a certificate as to the that such Person is in good standing of Terex as of a recent date from such Secretary of Statein the applicable jurisdictions, with good standing certificates attached; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that an attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, execution and delivery and performance of this Agreement Amendment and the borrowings hereunderother Transaction Documents is true and complete, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has were duly adopted, have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) aboveamended, modified or revoked, and (D) as constitute all resolutions adopted with respect to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terexcredit facility; (iii) a certificate of another officer as to the incumbency title, name and specimen signature of each Person authorized to sign the Secretary or Assistant Secretary executing the certificate pursuant to (ii) abovethis Amendment and other Transaction Documents; and (iv) such other documents that attached copies of Borrower’s Material Contracts are true and complete, and in full force and effect, without amendment except as the Incremental Lenders or the Administrative shown. Agent may reasonably request.conclusively rely on this certificate until it is otherwise notified by Borrower or Servicer in writing;
(e) The Incremental Lenders Agent shall have received evidence reasonably a favorable written opinion of counsel to Borrower and Servicer in form and substance satisfactory to them that Agent covering, among other matters, (i) the bonds issued by Fantuzzi Finance S.A. enforceability of this Amendment, the Loan Agreement as amended hereby and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and the other Transaction Documents, (ii) any guarantees relating to the grant and perfection of security interests in the Collateral, and (iii) such bonds other matters as Agent may require in Agent’s sole discretion, as well as a reliance letter in favor of the New Lender;
(f) Agent and New Lender shall have been irrevocably cancelled received, at least one Business Day prior to the Third Amendment Effective Date, of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case to the extent requested by the Agent or the New Lender in writing at least two Business Days prior to the Third Amendment Effective Date;
(g) after giving effect to this Amendment, no amounts payable Default or Event of Default shall have occurred and be continuing or shall be caused by the transactions contemplated by this Amendment;
(h) after giving effect to this Amendment, the representations and warranties of the Borrower and the Servicer set forth in respect this Amendment and the other Loan Documents shall be true and correct in all material respects with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such guarantees remain outstandingearlier date);
(i) Parent shall have consummated the transactions contemplated by that certain Stock Purchase and Transaction Agreement, dated as of December 14, 2018 (the “Transaction Agreement”) between Parent and BC Partners, Agent, including, but not limited to, entering into the Investment Advisory Agreement (as such term is defined in the Transaction Agreement) on the terms and conditions set forth in the Transaction Agreement, without giving effect to any material amendments thereto that are adverse to any Lender except as have been approved by the Agent, the New Lender and the Required Lenders; and
(j) the Borrower shall have paid all reasonable and documented fees and expenses of Agent in connection with the negotiation, preparation, execution and delivery of this Amendment and the Loan Documents (including, without limitation, the fees and expenses of counsel to Agent) and all fees payable under the Fee Letter of even date herewith between Borrower and New Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Portman Ridge Finance Corp)
Conditions Precedent. The obligation This Amendment shall become effective on the later to occur of (a) the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction date hereof, and (b) the Business Day on which each of the following conditions precedent:precedent has been satisfied (the “Effective Date”):
(ai) On the Incremental Term Loan Closing Date▇▇▇▇▇ shall have received counterparts hereof, duly executed by each of the conditions set forth in paragraphs parties hereto;
(bii) and (c) of Section 4.01 ▇▇▇▇▇ shall have received counterparts of the Credit Agreement shall be satisfied, Fifth Amended and Restated Fee Letter of even date herewith duly executed by each of the Administrative Agent and parties thereto, together with payment in full of the Incremental Lenders upfront amendment fee described in paragraph #1 thereof;
(iii) ▇▇▇▇▇ shall have received a certificate of the Secretary of the Seller certifying as to that the following:
A. Since October 3, 2016 (the “Closing Date”), there have been no amendments to the Certificate of Formation of the Seller, and no such amendment or other document has been authorized by the Board of Directors of Sensient Receivables LLC or by Sensient Colors LLC, the sole member of Sensient Receivables LLC;
B. As of the Effective Date, the Seller remains in good standing in the State of Delaware;
C. Since the Closing Date, there have been no amendments to the Seller’s LLC Agreement or, if there have been, attaching a true and correct copy of the LLC Agreement as so amended;
D. Attached to such certificate are true and correct copies of resolutions (the “Resolutions”) duly authorized by the Board of Directors of the Seller by unanimous written consent on August 25, 2022, authorizing the execution and delivery of this Amendment and the increase in the Facility Limit contemplated hereby, which Resolutions remain unaltered and in full force and effect dated such date as of the Effective Date; and
E. Attached thereto is a list of certain officers of the Seller who duly hold office on the Effective Date and executed by a Financial Officer are authorized on behalf of Terexthe Seller to execute this Amendment and the other documents, reports and notices pursuant to the Purchase Agreement, and the signature (or copy thereof) set forth beside each person’s name is genuine.
(biv) The Administrative Agent Each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct as of the Incremental Lenders shall each have received a duly completed Borrowing Request Effective Date; and
(v) Payment in accordance full of all reimbursable legal fees and disbursements of the Purchaser’s counsel in connection with the provisions of Section 2.03 of Transaction Documents and this Amendment for which the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ Seller has been invoiced by ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Sensient Technologies Corp)
Conditions Precedent. The obligation 6.1 Disbursement of the Incremental Lenders net proceeds of the Bonds to make Incremental Term Loans hereunder shall the Issuer will be subject to satisfaction of the following conditions precedentBond Trustee having received the documents listed below, in form and substance satisfactory to it, at least two Business Days prior to the Issue Date:
(a) On the Incremental Term Loan Closing Datethis Bond Agreement, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and duly executed by a Financial Officer of Terex.all parties thereto;
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions certified copies of Section 2.03 all necessary corporate resolutions of the Credit Agreement.Issuer to issue the Bonds and execute the Finance Documents;
(c) The Administrative Agent shall have receiveda power of attorney from the Issuer to relevant individuals for their execution of the relevant Finance Documents, or extracts from the relevant register or similar documentation evidencing such individuals’ authorisation to execute the Finance Documents on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Issuer;
(d) The Administrative Agent and the Incremental Lenders shall each have received certified copies of (i) a copy the Certificate of Incorporation or other similar official document for the certificate of incorporationIssuer, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, evidencing that it is validly registered and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; existing and (ii) a certificate the Articles of Association of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.Issuer;
(e) The Incremental Lenders shall the Issuer’s latest Financial Statements and Interim Accounts (if any);
(f) confirmation from the Manager that the applicable prospectus requirements (ref the EU prospectus directive (2003/71 EC) have received evidence reasonably satisfactory been fulfilled;
(g) to them the extent necessary, any public authorisations required for the Bond Issue;
(h) confirmation that the Bonds have been registered in the Securities Depository;
(i) the bonds issued Bond Trustee fee agreement set out in Clause 14.2, duly executed;
(j) copies of any written documentation used in the marketing of the Bonds or made public by Fantuzzi the Issuer or the Managers in connection with the Bond Issue; and
(k) any statements or legal opinions reasonably required by the Bond Trustee (including any capacity corporate opinions for each Obligor and opinions related to the validity, perfection and enforceability of the Finance S.A. Documents). The documents listed in items (b), (c), (d), (e), and guaranteed (i) above shall also be delivered by Reggiane Cranes & Plants S.peach other Obligor.A. shall
6.2 The Bond Trustee may, in its reasonable opinion, waive the deadline or requirements for documentation as set out in Clause 6.1.
6.3 Disbursement of the net proceeds from the Bonds is subject to the Bond Trustee’s written notice to the Issuer, the Managers and the Issuer Agent (if applicable) that the documents have been discharged in full controlled and no amounts payable in respect that the required conditions precedent are fulfilled.
6.4 On the Issue Date, subject to receipt of such bonds remain outstanding and (ii) any guarantees relating confirmation from the Bond Trustee pursuant to such bonds Clause 6.3, the Managers shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingmake the net proceeds from the Bond Issue available to the Issuer.
Appears in 1 contract
Sources: Bond Agreement
Conditions Precedent. The obligation of This Amendment shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction date when each of the following conditions precedent:is satisfied (the “Sixth Amendment Effective Date”):
3.1 The Administrative Agent shall have executed and received from the Lenders constituting the Required Lenders, the Borrower, each other Credit Party and BKV Heritage counterparts (in such number as may be requested by the Administrative Agent) of this Amendment signed on behalf of each Person.
3.2 The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that after giving effect to this Amendment on the Sixth Amendment Effective Date, (a) On the Incremental Term Loan Closing Date, each of the conditions representation and warranty set forth in paragraphs (b) and (c) of Section 4.01 Article VII of the Credit Agreement shall be satisfiedtrue and correct in all material respects (except for those which have a materiality qualifier, which shall be true and each correct in all respects as so qualified), except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date hereof, such representations and warranties shall continue to be true and correct in all material respects (except for those which have a materiality qualifier, which shall be true and correct in all respects as so qualified) as of such specified earlier date, (b) since December 31, 2025, there has not been any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect, (c) no Default or Event of Default shall have occurred and be continuing and (d) the Borrower and the Restricted Subsidiaries have no indebtedness outstanding other than (i) the Loans and other extensions of credit under the Credit Agreement and (ii) any other Debt permitted by Section 9.02 of the Credit Agreement.
3.3 The Administrative Agent and the Incremental Lenders shall have received a certificate of a Responsible Officer of BKV Heritage setting forth (a) resolutions of its board of directors (or comparable governing body) with respect to the authorization of BKV Heritage to execute, deliver and perform this Amendment and to enter into the transactions contemplated in the Loan Documents and perform its obligations thereunder, (b) the officers of BKV Heritage (i) who are authorized to sign this Amendment and the other Loan Documents to which BKV Heritage is a party and (ii) who will, until replaced by another officer or officers duly authorized for that effect dated purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with the Credit Agreement and the other Loan Documents and the transactions contemplated thereby, (c) specimen signatures of such date authorized officers, and (d) the bylaws, limited liability company agreements, limited partnership agreements, certificates of formation and certificates of limited partnership, as applicable, of BKV Heritage, certified as being true and correct. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to the contrary.
3.4 The Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of BKV Heritage from its state of incorporation or formation and with respect to foreign qualification in any other jurisdiction in which BKV Heritage owns Oil and Gas Properties.
3.5 The Administrative Agent shall have received an opinion of B▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, special counsel to the Credit Parties, in form and substance reasonably acceptable to the Administrative Agent and its counsel, addressed to the Administrative Agent, the Lenders and the Issuing Banks.
3.6 [Reserved].
3.7 With respect to BKV Heritage, the Administrative Agent shall have received copies of a supplement to the Guarantee and Collateral Agreement, substantially in the form of Annex 2 to the Guarantee and Collateral Agreement, in order for BKV Heritage to become a Guarantor and Grantor (as defined in the Guarantee and Collateral Agreement) duly executed by BKV Heritage, together with evidence that all other actions, recordings and filings required by the Security Instruments as of the Sixth Amendment Effective Date to (A) create the Liens intended to be created by any Security Instrument and (B) comply with Section 8.13 of the Credit Agreement, in each case shall have been delivered, taken, completed or otherwise provided for in a Financial Officer manner reasonably satisfactory to the Administrative Agent. All Equity Interests directly owned by Holdings, the Borrower or any Restricted Subsidiary, in each case as of Terexthe Sixth Amendment Effective Date after giving effect to the transactions contemplated hereunder, shall have been pledged pursuant to the Guarantee and Collateral Agreement.
(ba) The Administrative Agent and the Incremental Lenders shall each have received, at least 5 days prior to the Sixth Amendment Effective Date, all documentation and other information about the Credit Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act that has been requested by the Administrative Agent or such Lender in writing at least 10 days prior to the Sixth Amendment Effective Date and (b) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Sixth Amendment Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received a duly completed Borrowing Request in accordance with such Beneficial Ownership Certification at least 5 days prior to the provisions of Section 2.03 of the Credit AgreementSixth Amendment Effective Date.
(c) 3.9 The Administrative Agent shall have receivedreceived all fees and other amounts due and payable on or prior to the Sixth Amendment Effective Date, on behalf including, to the extent invoiced, reimbursement or payment of itself all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Incremental Lenders, a favorable written opinion Borrower hereunder (including the reasonable and documented fees and expenses of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, General Counsel of Terex, satisfactory counsel to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionAgent).
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit Agreement (BKV Corp)
Conditions Precedent. The obligation amendments set forth in Article 1 of the Incremental Lenders to make Incremental Term Loans hereunder this Amendment shall be subject to satisfaction not become effective until each of the following conditions precedenthas been satisfied:
(a) On 3.1 This Amendment shall have been executed by a duly authorized officer on behalf of the Incremental Term Loan Closing DateCompany, and the acknowledgements at the end of this Amendment shall have been executed by a duly authorized officer on behalf of each of the conditions set forth Guarantors, in paragraphs (bthe respective spaces so provided, and this Amendment shall have been delivered to the Bank.
3.2 Such other documents, and evidence of completion of such other matters, as the Bank may reasonably request shall have been duly executed, if applicable, and delivered to the Bank. The Company and the Guarantors previously have informed the Bank that Events of Default have occurred due to breaches of Sections 5.2(b) and (c5.2(c) of Section 4.01 of the Credit Agreement shall be satisfied, and each as of the Administrative Agent end of the Parent Guarantor’s fiscal quarters ended on or about July 18, 2003 and October 10, 2003 (collectively, the Incremental Lenders shall “Known Defaults”). So long as any Default or Event of Default has occurred and is continuing unwaived or would be caused thereby, payment of interest on Subordinated Debt is prohibited. Pursuant to the Fifth Amendment to the Credit Agreement referenced above, the Bank waived the Known Defaults subject to certain conditions, including without limitation that on or before December 31, 2003, the Company have received consummated the sale of the Sterling Heights Property (as defined in such Fifth Amendment) and applied a certificate portion of the proceeds thereof to that effect dated the payment of interest on the Rights Offering Sub Debt (as defined in such date and executed by a Financial Officer of Terex.
(bFifth Amendment) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 5.2(h) of the Credit Agreement.
Agreement (cas amended by such Fifth Amendment) or have through some other means of raising the necessary funds consented to by the Bank in its sole discretion paid all accrued and unpaid interest on the Rights Offering Sub Debt due December 31, 2003 (the “Prior Liquidity Event Condition”). The Administrative Agent shall have received, on behalf of itself Company and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory Guarantors now have requested that the Bank waive the Known Defaults subject to the Administrative Agent terms and the Incremental Lendersconditions set forth herein, (i) dated the Incremental Term Loan Closing Date, (ii) addressed but not subject to the Administrative Agent and the Incremental Lenders and (iii) covering Prior Liquidity Event Condition. Pursuant to such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, the Bank hereby waives the Known Defaults and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent agrees that the Company may pay accrued and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect unpaid interest on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described Rights Offering Sub Debt due December 31, 2003 in clause (B) belowan amount not exceeding $135,000, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them provided that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. Amendment Date (as defined in this Sixth Amendment) shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding occurred and (ii) the Bank shall not be deemed hereby to have waived any guarantees relating other Defaults or Events of Default, or such provisions of the Credit Agreement as of any other compliance times, or any other provisions of the Credit Agreement. The Company and the Guarantors acknowledge and agree that the waiver contained herein is a limited waiver, limited to such bonds the specific Known Defaults described above and subject to the conditions described in clauses (i) and (ii) of the immediately preceding sentence. Such waiver (a) shall not waive any other term, covenant or agreement of the Credit Agreement or any other Loan Document, (b) shall not be deemed to be a waiver of any other term, covenant or agreement of the Credit Agreement or any other Loan Document, and (c) shall not be deemed to prejudice any present or future right or rights which the Bank now has or may have been irrevocably cancelled and no amounts payable thereunder. Additionally, the waiver set forth in respect this Article IV shall not be deemed to waive any Default or Event of such guarantees remain outstandingDefault, whether now existing or hereafter existing, whether known, unknown or otherwise, except as specifically set forth herein.
Appears in 1 contract
Conditions Precedent. The obligation of the Incremental This Amendment shall not be binding upon Agent, Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction or any Obligor until each of the following conditions precedentprecedent have been satisfied in form and substance reasonably satisfactory to Agent on or prior to the Third Amendment Effective Date, unless otherwise agreed to by the Agent:
(a) On Each Obligor shall have delivered to Agent duly executed counterparts of this Amendment which, when taken together, bear the Incremental Term Loan Closing Dateauthorized signatures of Obligors, each of the conditions set forth in paragraphs Agent and Lenders;
(b) and Borrowers shall have delivered to Agent duly executed counterparts of the Third Amendment Fee Letter;
(c) Agent shall have received good standing certificates (to the extent such concept exists and is applicable under the requirements of Section 4.01 Applicable Law of the Credit Agreement shall be satisfiedrelevant jurisdiction) for each Obligor other than UK Borrower, and each issued by the Secretary of the Administrative State or other appropriate official of such ▇▇▇▇▇▇▇’s jurisdiction of organization; and
(d) Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request authorized officer of each Obligor (or a director in accordance with the provisions case of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have receiveda UK Borrower), on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, certifying (i) dated that the Incremental Term Loan Closing Date, (ii) addressed Organic Documents of such Obligor most recently certified and delivered to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating prior to the Loan Documents as Third Amendment Effective Date remain in full force and effect on the Administrative Agent Third Amendment Effective Date without modification or the Incremental Lenders shall reasonably request, and Terex hereby requests amendment since such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of Stateprior delivery; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that an attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by (of, in the case of a UK Borrower, its board of directors and all the holders of Terex its Equity Interests) authorizing the execution, execution and delivery and performance of this Agreement Amendment and the borrowings hereunderother Loan Documents to which it is a party is true and complete, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has were duly adopted, and have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) aboveamended, modified or revoked; and (Diii) as to the incumbency title, name and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as Person authorized to sign the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestapplicable Loan Documents.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Turtle Beach Corp)
Conditions Precedent. (a) The obligation of the Incremental Lenders Bank to make Incremental Term Loans hereunder shall be any further advance on the Revolving Loan is subject to satisfaction Borrower's satisfaction, in Bank's sole discretion, of the following conditions precedent:
(a1) On the Incremental Term negotiation, execution, and delivery of Loan Closing DateDocuments in Proper Form, each including, but not limited to, the following:
(i) this Amendment; (ii) the Revolving Note; and (iii) the Kansas Deed of Trust.
(2) satisfactory evidence that Bank holds perfected liens and security interests in all collateral for the Loans, subject to no other liens or security interests.
(3) there being no order or injunction or other pending or threatened litigation in which there is a reasonable possibility, in Bank's judgment, of a decision which could materially adversely affect the ability of Borrowers to perform under the Loan Documents.
(4) Bank shall have completed and approved a review of title to, and the status of the conditions set forth in paragraphs (b) environmental condition of, Borrower's oil and (c) gas properties, and the results of Section 4.01 of the Credit Agreement such review shall be satisfiedacceptable to Bank in its sole discretion.
(5) Bank's receipt and review, with results satisfactory to Bank and its counsel, of information regarding litigation, tax, accounting, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, and each contingent liabilities of the Administrative Agent Borrowers and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terexany subsidiaries.
(b) The Administrative Agent and Bank will not be obligated to make any advance on the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have receivedLoans, on behalf of itself and the Incremental Lendersif, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory prior to the Administrative Agent and the Incremental Lenderstime that a loan or advance is made, (i) dated there has been any material adverse change in any Borrowers' financial condition since the Incremental Term Loan Closing Datemost-recent financial statements furnished to Bank, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to any representations or warranties made by any Borrowers in the Loan Documents as the Administrative Agent Agreement or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified other Loan Documents is untrue or incorrect as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowadvance or loan, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency Bank has not received all Loan Documents appropriately executed by Borrowers and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and all other proper parties, (iv) such other Bank has requested that Borrowers execute additional loan or security documents as the Incremental Lenders and those documents have not yet been properly executed, delivered, and recorded, or the Administrative Agent may reasonably request.
(ev) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect an Event of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect Default has occurred. TOREADOR RESOURCES CORPORATION, et al November 8, 2001 Page 5 of such guarantees remain outstanding.7
Appears in 1 contract
Conditions Precedent. The obligation of Lender shall, from time to time, make Additional Advances to be used solely to pay or reimburse Borrower for Approved Renovation/Re-Branding Expenses at the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of Property; provided the following conditions precedentprecedent are satisfied:
(a) On Lender receives a notice of borrowing in the Incremental Term Loan Closing Date, each form of Schedule 7 at least ten (10) Business Days before the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfieddate, and each of again on the Administrative Agent and date, the Incremental Lenders shall have received a certificate proposed Additional Advance is to that effect dated such date and executed by a Financial Officer of Terex.be made;
(b) The Administrative Agent and Both immediately prior to the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 making of the Credit Agreement.Additional Advance and after giving effect thereto, no Default or Event of Default shall be continuing;
(c) The Administrative Agent shall have received, on behalf of itself representations and warranties made by Borrower in this Agreement and in the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the other Loan Documents shall be true and correct in all material respects on and as of the Administrative Agent or date of the Incremental Lenders shall reasonably request, making of the Additional Advance with the same force and Terex hereby requests effect as if made on and as of such counsel to deliver such opinion.date;
(d) The Administrative Agent and There shall be no more than one Additional Advance during any calendar month;
(e) In no event will the Incremental Lenders aggregate amount of the requested Additional Advance, together with all prior Additional Advances previously made by Lender exceed $5,000,000;
(f) With respect to any Additional Advance, such Additional Advance will be used solely to make a contribution to Owner for Owner to pay for (or to reimburse Owner for) Approved Renovation/Re-Branding Expenses at the Property;
(g) Lender shall each have received (i) a copy title search showing that since the making of the certificate last Additional Advance there has been no change in the state of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as title to the good standing of Terex as of a recent date from such Secretary of State; Property and no survey exceptions with respect to the Property not theretofore approved by Lender, together with other evidence satisfactory to Lender that no mechanic’s Liens or other Liens have been filed and remain filed with respect to the Property and (ii) a certificate an endorsement to the applicable UCC Insurance Policy, which endorsement shall have the effect of (x) updating the Secretary or Assistant Secretary effective date of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior such UCC Insurance Policy to the date of the resolutions described making of the Additional Advance and (y) increasing the coverage of such UCC Insurance Policy by an amount equal to the amount of the Additional Advance;
(h) All fees and expenses payable to Lender, including the fees and expenses referred to in clause Sections 2.7 and 5.30, to the extent then due and payable, shall have been (Bor contemporaneously are being) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunderpaid in full, and all title premiums and other title and survey charges shall have been (or contemporaneously are being) paid in full;
(i) Lender shall have received reasonably satisfactory evidence that all permits, licenses and approvals required for any work associated with such resolutions requested disbursement have not been modified, rescinded or amended obtained and are in full force and effect;
(j) To the extent reasonably requested by Lender, Lender shall have received such affidavits and certificates as to such matters as Lender may reasonably request, including certificates of the approved architect or engineer, if applicable, or, of a construction consultant retained by Lender at Borrower’s expense in connection with any work that (C1) all of the work completed has been done substantially in compliance with the plans and specifications and applicable Legal Requirements, and (2) the disbursement of such Additional Advance is required to reimburse payments of costs incurred for Approved Renovation/Re-Branding Expenses or to pay costs incurred for Approved Renovation/Re-Branding Expenses due to, contractors, subcontractors, materialmen, laborers, engineers, architects or other persons rendering services or materials or paying for such work;
(k) Borrower shall have delivered (or shall have caused Owner to deliver) to Lender lien waivers (conditional or otherwise) executed and delivered by the general contractor and all subcontractors, materialmen and other Persons requested by Lender for all work for which a Additional Advance has previously been made or for which the Additional Advance in question is being requested;
(l) To the extent reasonably requested by Lender, Lender shall have received from Borrower an Officer’s Certificate: (1) certifying that the certificate of incorporation of Terex has not been amended since all work relating to work performed on or prior to the date of the last amendment thereto shown on certificate has been completed in a good and workmanlike manner in accordance with all Legal Requirements, (2) identifying each Person that supplied labor or materials with respect to such capital improvement, (3) stating that each general contractor and architect retained for any work are reputable and licensed or otherwise authorized to do business in the certificate of good standing furnished State and have been engaged pursuant to clause (i) above, arms’ length agreements entered into on market terms and conditions and (D4) as to the incumbency and specimen signature of stating that each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature such Person has been or upon receipt of the Secretary requested Additional Advance will be paid in full for work for which a Additional Advance has been made or Assistant Secretary executing is being requested;
(m) [Intentionally Deleted];
(n) When such work has been completed, Lender shall have received a copy of any certificate or certificates required by law to render occupancy of the certificate pursuant to Improvements legal;
(iio) above; and (iv) Lender shall have received such other documents as relating to the Incremental Lenders Property or the Administrative Agent Additional Advance as Lender may reasonably request.; and
(ep) The Incremental Lenders If necessary, Borrower shall have received evidence reasonably satisfactory either (1) (x) obtained a new Interest Rate Protection Agreement satisfying each of the terms and conditions set forth in Section 2.6 hereof and in a notional amount equal to them that the outstanding principal balance of the Loan after giving effect to the applicable Additional Advance and (iy) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in delivered to Lender an Assignment of Interest Rate Protection Agreement on Lender’s then standard form with respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds new Interest Rate Protection Agreement or (2) increased the notional amount under any existing Interest Rate Protection Agreement by an amount equal to the applicable Additional Advance, which Interest Rate Protection Agreement shall have been irrevocably cancelled otherwise remain on the same terms and no amounts payable shall continue to satisfy the conditions set forth in Section 2.6 hereof. If an Interest Rate Protection Agreement satisfying each of the terms and conditions set forth in Section 2.6 hereof is, already (i.e., prior to the Additional Advance in question), in a notional amount equal to the then outstanding principal balance of the Loan (after giving effect to the Additional Advance in question) and an Assignment of Interest Rate Protection Agreement on Lender’s then standard form with respect of to such guarantees remain outstandingInterest Rate Protection Agreement is already (i.e., prior to the Additional Advance in question) in effect, the conditions set forth in this clause (p) shall be deemed satisfied.
Appears in 1 contract
Conditions Precedent. The obligation of Save as the Incremental Lenders to make Incremental Master Issuer, Funding and the Security Trustee may otherwise agree, each Term Loans hereunder shall Advance will not be subject to satisfaction of available for utilisation on the following conditions precedentrelevant Closing Date unless:
(a) On the Incremental Term Loan related Series and Class of Master Issuer Notes has been issued by the Master Issuer on the relevant Closing Date, each Date and the subscription proceeds thereof have been received by or on behalf of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Master Issuer;
(b) The Administrative Agent and the Incremental Lenders shall each Security Trustee has confirmed to Funding that it or its advisers have received a duly completed Borrowing Request (at any time on or prior to such Closing Date) all the information and documents listed in accordance with Schedule 1 hereto (Conditions Precedent) in form and substance satisfactory to the provisions of Section 2.03 of the Credit Agreement.Security Trustee;
(c) The Administrative Agent shall have received, on behalf of itself Funding and the Incremental Lenders, Master Issuer have signed a favorable written opinion Term Advance Supplement in respect of ▇▇▇▇ ▇▇▇▇▇, General Counsel that Term Advance (substantially in the form set out in Schedule 3 hereto (Form of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Advance Supplement));
(d) The Administrative Agent and Funding has confirmed in the Incremental Lenders shall each have received applicable Term Advance Supplement that:
(i) a copy no Master Intercompany Loan Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the certificate making of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of StateTerm Advance; and
(ii) a certificate the representations set out in Clause 13 are true on and as of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan relevant Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior by reference to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true facts and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.circumstances then existing;
(e) The Incremental Lenders shall Funding has delivered a solvency certificate substantially in the form set out in Schedule 4 hereto;
(f) the Master Issuer has confirmed in the applicable Term Advance Supplement that no Note Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the making of such Term Advance;
(g) each of the Rating Agencies has confirmed in writing to the Security Trustee that there will not, as a result of the Master Issuer issuing any Master Issuer Notes on the Closing Date, be any adverse effect on the then current ratings by the Rating Agencies of any then outstanding Master Issuer Notes of the Master Issuer;
(h) one or more Deeds of Accession relating to the Funding Deed of Charge have received evidence reasonably satisfactory been executed by any additional Funding Secured Creditors and the parties to them that the Funding Deed of Charge; and
(i) all other conditions precedent as may be specified in the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall applicable Term Advance Supplement have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingsatisfied.
Appears in 1 contract
Sources: Master Intercompany Loan Agreement (Holmes Funding LTD)
Conditions Precedent. The obligation of Subject to the Incremental Lenders to make Incremental Term Loans hereunder other terms and conditions hereof, this Amendment shall be subject to satisfaction not become effective until the Agent shall have received each of the following conditions precedentinstruments, documents or agreements, each in form and substance satisfactory to the Agent:
(a) On the Incremental Term Loan Closing Datecounterparts of this Amendment duly executed and delivered by Borrower, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfiedParent, Agent and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Lenders;
(b) The Administrative Agent an Acknowledgement and Consent executed by the Parent (the "Guarantor Consent"), consenting to this Amendment and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.transactions contemplated hereby;
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex CBL Holdings I, Inc. dated as of the Incremental Term Loan Closing Date and date hereof certifying (Ai) that the Certificate of Incorporation and By-laws of CBL Holdings I, Inc. have not been modified since September 6, 2005; (ii) that the Partnership Agreement and Certificate of Limited Partnership of Borrower have not been modified since September 6, 2005; (iii) that attached thereto is a true and complete copy of Resolutions adopted by the byBoard of Directors of CBL Holdings I, Inc., authorizing the execution and delivery on behalf of Borrower of this Amendment and the other instruments, documents or agreements executed and delivered by or on behalf of Borrower in connection herewith (all such instruments, documents or agreements executed and delivered in connection herewith by or on behalf of CBL Holdings I, Inc. or Borrower are hereinafter collectively referred to as the "Borrower Amendment Documents"); and (iv) as to the incumbency and genuineness of the signatures of the officers of CBL Holdings I, Inc. executing the Borrower Amendment Documents to which CBL Holdings I, Inc. or Borrower is a party;
(d) a certificate of the Secretary of CBL & Associates Properties, Inc. dated as of the date hereof certifying (i) that the Certificate of Incorporation and By-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times CBL & Associates Properties, Inc. have not been modified since a date prior to the date of the resolutions described in clause September 6, 2005; (B) below, (Bii) that attached thereto is a true and complete copy of resolutions duly Resolutions adopted by the board Board of directors Directors of Terex CBL & Associates Properties, Inc., authorizing the executionexecution and delivery on behalf of CBL & Associates Properties, delivery and performance Inc. of this Agreement Amendment and the borrowings hereunderother instruments, documents or agreements executed and that delivered by CBL & Associates Properties, Inc. in connection herewith (all such resolutions have not been modifiedinstruments, rescinded documents or amended agreements executed and delivered in connection herewith by or on behalf of CBL & Associates Properties, Inc. are in full force and effect, (C) that hereinafter collectively referred to as the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, "Properties Amendment Documents"); and (Diii) as to the incumbency and specimen signature genuineness of the signatures of the officers of CBL & Associates Properties, Inc. executing the Properties Amendment Documents to which CBL & Associates Properties, Inc. is a party;
(e) the opinions of Borrower's in-house counsel, addressed to Agent and each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as Lender and satisfactory in form and substance to Agent, covering such matters relating to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents transaction contemplated by this Amendment as the Incremental Lenders or the Administrative Agent may reasonably request.; and
(ef) The Incremental Lenders payment to Agent, for the benefit of Lenders, of all loan fees due in connection with this Amendment. Upon fulfillment of the foregoing conditions precedent, this Amendment shall have received evidence reasonably satisfactory to them that (i) become effective as of the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pdate hereof.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Unsecured Credit Agreement (CBL & Associates Properties Inc)
Conditions Precedent. The obligation obligations of the Incremental Lenders Revolving Credit Lender to make the Incremental Term Loans hereunder Revolving Credit Commitments available, and the obligations of the Additional L/C Issuer to issue standby Letters of Credit, shall be subject to satisfaction not become effective until the date on which each of the following conditions precedent:is satisfied (such date shall be the “Incremental Facility Closing Date”):
i. The Administrative Agent (aor its counsel) On shall have received from the Borrower, Holdings, the Incremental Term Loan Closing DateRevolving Credit Lender, the Additional L/C Issuer and each of the conditions existing L/C Issuers either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
ii. The Administrative Agent (or its counsel) shall have received a certificate of the Borrower dated as of the Incremental Facility Closing Date signed by a Responsible Officer of the Borrower certifying (i) that the Organization Documents, including amendments thereto, of the Borrower either (x) have not been amended since the Closing Date or (y) are attached as an exhibit to such certificate, (ii) (x) copies of resolutions of its Board of Directors (or similar governing body) of the Borrower approving the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or (y) to the extent the resolutions delivered on the Closing Date approve such matters, that the resolutions delivered on the Closing Date authorize the transactions contemplated hereby, remain in full force and effect and have not been amended or otherwise modified since the adoption thereof and (iii) as to the matters set forth in paragraphs (bSections 6(iii) and (civ) below.
iii. After giving effect to the Incremental Revolving Credit Commitments, the conditions of Section 4.01 Sections 4.02(i) of the Credit Agreement shall be satisfied, and each satisfied (it being understood that all references to “the date of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request Credit Extension” or similar language in accordance with the provisions of such Section 2.03 4.02 of the Credit Agreement shall be deemed to refer to the effective date of this Agreement).
(c) The Administrative Agent iv. No Event of Default shall have received, on behalf of itself occurred and be continuing or would exist after giving effect to the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionRevolving Credit Commitments.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of This Amendment shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of date (the “Amendment Effective Date”) on which the following conditions precedentprecedent shall have been satisfied or waived:
(a) On the Incremental Lender shall have received the following:
(i) This Amendment, executed and delivered by a duly authorized officer of each Borrower;
(ii) For the account of the Lender, a Term Loan Closing DateNote and a Revolving Credit Note, each of conforming to the conditions set forth in paragraphs (b) and (c) of Section 4.01 requirements of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer duly authorized officer of Terex.the Borrowers;
(biii) The Administrative Agent A closing certificate of each Borrower, dated the First Amendment Effective Date, substantially in the form of Exhibit E to the Existing Credit Agreement, with appropriate insertions and attachments, satisfactory in form and substance to the Lender, executed by the Treasurer and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions Secretary of Section 2.03 such Borrower;
(iv) A copy of the Credit Agreement.
(c) The Administrative Agent shall have receivedresolutions, on behalf of itself in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance satisfactory to the Administrative Agent and Lender, of the Incremental Lenders, Board of Directors of each Borrower authorizing (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement First Amendment, (ii) the borrowings contemplated hereunder and (iii) the granting by it of, and the borrowings hereundercontinuation of, and that the Liens created pursuant to the Security Documents, certified by the Secretary or an Assistant Secretary of such resolutions have not been modifiedBorrower as of the First Amendment Effective Date, rescinded or amended and are which certification shall be included in full force and effect, (C) that the certificate delivered in respect of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished such Borrower pursuant to clause (ic) above, shall be in form and substance satisfactory to the Lender and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded;
(Dv) A certificate of each Borrower, dated the First Amendment Effective Date, as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the officers of such Borrower executing this First Amendment, which certificate shall be included in the certificate delivered in respect of such Borrower pursuant to clause (c) above, shall be satisfactory in form and substance to the Lender, and shall be executed by the President or any Vice President and the Secretary or any Assistant Secretary executing of such Borrower;
(vi) True and complete copies of the Governing Documents of each Borrower, certified as of the First Amendment Effective Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of such Borrower, which certification shall be included in the certificate delivered in respect of such Borrower pursuant to clause (c) above and shall be in form and substance satisfactory to the Lender;
(vii) Certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each Borrower (i) in the jurisdiction of its organization and (ii) above; in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify would not have a Material Adverse Effect;
(viii) The executed legal opinions of counsel to the Borrowers, covering such matters incident to the transactions contemplated by this First Amendment as the Lender may reasonably require, and in form and substance satisfactory to the Lender;
(ivix) All partnership, corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this First Amendment shall be satisfactory in form and substance to the Lender, and the Lender shall have received such other documents and legal opinions in respect of any aspect or consequence of the transactions contemplated hereby or thereby as the Incremental Lenders or the Administrative Agent may it shall reasonably request; and
(x) An amendment fee in an amount equal to $2,500,000.
(b) Any filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1 or amendments to financing statements on form UCC-3, necessary or, in the opinion of the Lender, desirable to perfect or to continue the perfection of the Liens created by the Security Documents shall have been completed or arrangements satisfactory to the Lender to complete the same shall have been made.
(c) Each of the representations and warranties made by the Borrowers and the other Loan Parties in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (unless such representation and warranty is made as of an earlier date in which case such representation and warranty shall be true and correct as of such earlier date).
(d) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Loans requested to be made on such date.
(e) The Incremental Lenders All partnership, corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this First Amendment shall be satisfactory in form and substance to the Lender, and the Lender shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. such other documents and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable legal opinions in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds aspect or consequence of the transactions contemplated hereby as it shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingreasonably request.
Appears in 1 contract
Sources: Credit Agreement and Security Agreement (Amerco /Nv/)
Conditions Precedent. The obligation Notwithstanding anything to the contrary herein contained, the agreements of Holder hereunder and the effectiveness hereof and of the Incremental Lenders amendments to make Incremental Term Loans hereunder shall be the Loan Documents effected hereby (including the amendment of the Second Amended and Restated Loan Agreement) are subject to satisfaction and conditioned upon the satisfaction, on or prior to the Effective Date. of the following conditions precedent:(herein called the “Conditions Precedent”):
(a) On the Incremental Term Loan Closing Date, each A complete counterpart of this Agreement executed and acknowledged by all of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Parties;
(b) The Administrative Agent Two Uniform Commercial Code Financing Statements executed by Borrower, in substantially the same form as the original UCCs and properly recorded in the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.appropriate local and state governmental offices;
(c) The Administrative Agent An acceptable endorsement to its original loan policy of title insurance issued by First American Title Insurance Company (the “Current Loan Policy”) or (2) a replacement loan policy covering the Property in substantially the same form as the Current Loan Policy (the “New Loan Policy”); the Current Loan Policy, as endorsed, or the New Loan Policy, as applicable (in either case, the “Title Policy”) shall have receivedinsure the continued first priority lien of the Mortgage as affected by this Agreement, on behalf be written by a title insurance company acceptable to Holder, be effective as of itself the date this Agreement is recorded, and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory otherwise contain only those exceptions to the Administrative Agent Title Policy which are acceptable to Holder and in the Incremental Lenders, (i) dated case of a New Loan Policy include the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents same endorsements as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Current Loan Policy;
(d) The Administrative Agent A certificate of insurance and a new policy or policies of insurance evidencing that the Incremental Lenders shall each have received (i) a copy Property remains and is insured in accordance with all requirements of the certificate of incorporationLoan Documents and Holder, including all amendments thereto, of Terex, certified naming the Borrower as of the insured owner and Holder as a recent date by the Secretary of State of the State of Delawaremortgagee/loss payee, and a certificate as otherwise in form and content acceptable to the good standing of Terex as of a recent date from such Secretary of State; Holder;
(iie) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) Evidence satisfactory to Holder that attached thereto Borrower is a true and complete copy of Delaware limited liability company, in good standing; that Borrower has authorized the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance execution of this Agreement and the borrowings hereunderAgreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer persons executing this Agreement on behalf of TerexBorrower has full power and authority to bind Borrower;
(f) A legal opinion of Borrower’s counsel, addressed to Holder and dated as of the date hereof, in form and substance satisfactory to Holder, opining that the execution, delivery and/or assumption of the Loan Documents have been duly authorized by all necessary parties (other than Holder), and addressing such other matters (including the good standing, authority and due execution and delivery by Borrower) as Holder may reasonably require; and
(iiig) As soon as the same shall become available, a certificate copy of another officer as the recorded vesting deed that transfers title to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant Property to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestBorrower.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. a. As conditions precedent to the initial Transaction, Buyer shall have received on or before the day of such initial Transaction the following, in form and substance satisfactory to Buyer and duly executed by each party thereto:
i. Agent shall have received the Program Documents, including collateral documents, required legal opinions and certificates, each duly executed and in form and substance reasonably satisfactory to the Agent;
ii. Agent shall be satisfied that all material Liens granted to Buyer hereunder with respect to the Collateral are valid and perfected liens and have the priorities indicated herein;
iii. Except as disclosed on Schedule 2 attached hereto, there are no actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings affecting Sellers or any of their Subsidiaries or affecting any of the Property of any of them before any Governmental Authority which (i) questions or challenges the validity or enforceability of the Program Documents or otherwise materially impairs the transactions contemplated hereby or (ii) individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
iv. The Program Documents shall be duly executed and delivered by the parties thereto and being in full force and effect, free of any modification, breach or waiver;
v. Except as disclosed on Schedule 3 attached hereto, there shall have been no Material Adverse Change in the business, financial performance, assets, operations or condition (financial or otherwise) of Sellers and their subsidiaries, taken as a whole since March 31, 2007;
vi. The Sellers shall have delivered to the Agent and the Buyer (i) an unaudited consolidated balance sheet of NFI dated not earlier than March 31, 2007 prior to the date hereof showing Adjusted Tangible Net Worth of not less than $517,000,000 (which may or may not have been prepared in accordance with GAAP), (ii) an unaudited summary schedule of estimated consolidated financial results of NFI and its subsidiaries for the three months ended March 31, 2007 (which may or may not have been prepared in accordance with GAAP) and (iii) a certificate of the Chief Financial Officer of NFI certifying to the best of his knowledge as to such balance sheet after reasonable inquiry and further stating that he is not aware of any information or other matter that would make the financial information set forth therein materially inaccurate or incomplete;
vii. There shall not exist any violation of applicable laws and regulations (including, without limitation, ERISA, margin regulations and environmental laws) which could reasonably be expected to result in a Material Adverse Change, except as disclosed on Schedule 3 attached hereto;
viii. The representations and warranties contained herein shall be true and correct in all material respects as of the date hereof;
ix. No event shall have occurred and be continuing or would result from any Existing Agreement that would constitute an Event of Default or a Default;
x. Agent shall have received a certified copy of each Seller's and each Guarantor's consents or corporate resolutions, as applicable, approving the Program Documents and Transactions thereunder (either specifically or by general resolution), and all documents evidencing other necessary corporate action or governmental approvals as may be required in connection with the Program Documents;
xi. Agent shall have received an incumbency certificate of the secretaries of each Seller, each Guarantor and the REO Subsidiary certifying the names, true signatures and titles of each Seller's and each Guarantor's representatives duly authorized to request Transactions hereunder and to execute the Program Documents and the other documents to be delivered thereunder;
xii. Agent shall have received an opinion of each Seller's, each Guarantor's and the REO Subsidiary's counsel as to such matters (including, without limitation, a corporate opinion, a New York law enforceability opinion, a security interest opinion, an investment company act opinion, a "repurchase agreement" under federal bankruptcy law opinion with respect to all Purchased Assets other than REO Stock and a "securities contract" under federal bankruptcy law opinion with respect to all Purchased Assets) as Buyer may reasonably request and in form and substance acceptable to Buyer;
xiii. A copy of the Underwriting Guidelines certified by an officer of NMI;
xiv. All of the conditions precedent in the Guaranty shall have been satisfied; and
xv. Any other documents reasonably requested by Buyer.
b. The obligation of Buyer to enter into each Transaction (including the Incremental Lenders initial Transaction) pursuant to make Incremental Term Loans hereunder shall be this Agreement is subject to satisfaction of the following conditions precedent:
i. Buyer or its designee shall have received on or before the day of a Transaction with respect to such Purchased Assets (unless otherwise specified in this Agreement) the following, in form and substance satisfactory to Buyer and (if applicable) duly executed:
(A) Transaction Notice, Loan Schedule and Computer Tape delivered pursuant to Section 4(a);
(B) The related Trust Receipt; and
(C) such certificates, customary opinions of counsel or other documents as Buyer may reasonably request, provided that such opinions of counsel shall not be required in connection with each Transaction but shall only be required from time to time as deemed necessary by Buyer in its good faith.
ii. No Default or Event of Default shall have occurred and be continuing.
iii. Buyer shall not have reasonably determined that a change in any requirement of law or in the interpretation or administration of any requirement of law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions with a Pricing Rate based on LIBOR, unless Seller shall have elected pursuant to Section 15(a) hereof that the Pricing Rate for all Transactions be based upon the Prime Rate.
iv. All representations and warranties in the Program Documents shall be true and correct in all material respects on the date of such Transaction and Sellers and Guarantors are in compliance with the terms and conditions of the Program Documents.
v. The then aggregate outstanding Purchase Price for all Purchased Assets, when added to the Purchase Price for the requested Transaction, shall not exceed the Maximum Aggregate Purchase Price.
vi. No event or events shall have been reasonably determined by Buyer to have occurred and be continuing resulting in the effective absence of a whole loan or asset-backed securities market.
vii. If requested, Buyer shall have received satisfactory information regarding the hedging strategy, arrangements and general policy of the Guarantors with respect to hedge instruments.
viii. Satisfaction of any conditions precedent to the initial Transaction as set forth in clause (a) On of this Section 9 that were not satisfied prior to such initial Purchase Date.
ix. In no event shall the Incremental Term Loan Closing DateBuyer be obligated to enter into more than four Transactions per Business Day (excluding any automatic Transaction pursuant to Section 3(b)) ; provided, each that the related Seller shall give Buyer proper advance notification (to include the receipt of the conditions requisite loan level information) of a Transaction, and Buyer will use its best efforts to enter into such Transactions at 10:00 a.m., 12:00 p.m., 2:00 p.m. and 4:00 p.m. New York City time on any Business Day.
x. The Purchase Price for the requested Transaction shall not be less than $100,000.
xi. Buyer shall have determined that all actions necessary or, in the opinion of Buyer, desirable to maintain Buyer's perfected interest in the Purchased Assets and other Collateral have been taken, including, without limitation, duly executed and filed Uniform Commercial Code financing statements on Form UCC-1.
xii. Buyer shall have received from the Sellers payment of the applicable Facility Fees as set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunderSide Letter.
xiii. The Buyer shall not enter into any Transaction with respect to REO Properties until NMI and NovaStar Asset enter into a contribution agreement in form and substance acceptable to the Buyer, and that the Buyer receives the requisite opinions of counsel related to such resolutions have not been modified, rescinded or amended and are contribution agreement as determined by the Buyer in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such its sole discretion.
xiv. Any other documents as the Incremental Lenders or the Administrative Agent may reasonably requestrequested by Buyer.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Master Repurchase Agreement (Novastar Financial Inc)
Conditions Precedent. 3.1 The obligation obligations of the Incremental Lenders to make Incremental Term Loans parties hereunder shall be are subject to satisfaction the fulfillment of the following conditions precedent:
3.1.1 The obtaining by the Purchaser, through the Guarantor (a) On the Incremental Term Loan Closing Dateits ultimate parent company), each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 financing necessary for the payment of the Credit Agreement shall be satisfied, and each Price mentioned in Article
(i) any significant violation of the Administrative Agent applicable laws and regulations in force concerning the Incremental Lenders shall protection of the environment,
(ii) the absence of any authorization, licence or other approval required by the laws and regulations in force, and/or, the receipt from any competent body of any notification to the effect that any such authorization, licence or approval has not been substantially complied with or has been withdrawn,
(iii) the occurrence on any of the real properties currently owned or occupied by the Company or any of the Subsidiaries of any leak or spill or disposal of any substance, material or waste which is regulated as "toxic" or "hazardous" under any applicable environmental regulation, particularly if, as a result of such leak, spill or disposal, the Company or any of the Subsidiaries is obligated to clean-up or otherwise remedy any contaminated surface water, ground water or soil, or
(iv) the existence of storage tanks located on any real property occupied by the Company or any of the Subsidiaries, whether on the premises or underground, which have received a certificate created or are likely to that effect dated such date and executed by a Financial Officer of Terexcreate any environmental hazard, given their current use.
3.1.3 The disposal by the Company of all of its present subsidiaries other than the Subsidiaries referred to in Schedule 6 (bsuch other subsidiaries, a list of which is set out in Schedule 8, being hereinafter referred to as the "Other Subsidiaries") The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions terms of Section 2.03 of the Credit AgreementArticle 5.
(c) 3.1.4 The Administrative Agent shall have receivedcontinuing accuracy, on behalf of itself and as at the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to of the Administrative Agent Representations and Warranties contained in Article 6.1, together with compliance with the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionobligations set forth in Article 5.2 hereof.
1.2 above (d) The Administrative Agent and it being specified that the Incremental Lenders Purchaser shall each have received (i) procure that a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date report to be prepared by the Secretary of State environmental firm which will carry out the environmental audit be remitted to the Vendors no later than March 15, 1997) and the Vendors shall do the same as regards the fulfillment of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as condition set out in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestArticle 3.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation SECTION 4.1. This Second Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to Second Amendment Date upon the satisfaction of the following conditions precedent:(or until such conditions are waived in writing by the Administrative Agent in its sole discretion):
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement this Second Amendment shall be satisfiedhave been duly executed by, and each of delivered to, the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.parties hereto;
(b) The the Collateral Administrator on behalf of the Borrower shall have paid, or caused to be paid, to the Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request structuring fee in accordance with the provisions of Section 2.03 of the Credit Agreement.an amount equal to $703,125;
(c) The the Administrative Agent shall have received, on behalf of itself received satisfactory evidence that the Borrower and the Incremental Lenders, a favorable written opinion Collateral Administrator have obtained all required consents and approvals of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory all Persons to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement Second Amendment and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date consummation of the last amendment thereto shown on transactions contemplated hereby;
(d) the certificate of good standing furnished pursuant Borrower and the Collateral Administrator shall each have delivered to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.a certification that no Default or Event of Default has occurred and is continuing in the form of Exhibit D to the Loan and Security Agreement, and such certification shall, with respect to the Collateral Administrator, include a representation that the Collateral Administrator has neither incurred nor suffered to exist any Indebtedness as of the Second Amendment Date;
(e) The Incremental Lenders the Borrower and the Collateral Administrator shall each have delivered to the Administrative Agent a certification that such entity is Solvent in the form of Exhibit C to the Loan and Security Agreement;
(f) the Collateral Administrator shall have delivered to the Administrative Agent certification that no Change of Control or Collateral Administrator Termination Event has occurred and is continuing; and
(g) the Administrative Agent shall have received evidence reasonably satisfactory the executed legal opinion or opinions of Simpson, Thacher & ▇▇▇▇▇▇▇▇ LLP counsel to them that the Borrower, covering (i) the bonds issued by Fantuzzi Finance S.A. authorization and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect enforceability of such bonds remain outstanding and this Second Amendment (ii) any guarantees relating the sale of the Loans to such bonds shall have been irrevocably cancelled the Borrower and no amounts payable (iii) non-consolidation of the Borrower, in respect of such guarantees remain outstandingeach case in form and substance acceptable to the Administrative Agent in its reasonable discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (New Mountain Finance Corp)
Conditions Precedent. The obligation This Agreement shall be effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to date hereof upon satisfaction of each of the following conditions precedent:
(a) On receipt by the Incremental Term Administrative Agent of this Agreement executed by the Loan Closing DateParties, each of the conditions set forth in paragraphs New Lender, the L/C Issuer and the Administrative Agent;
(b) receipt by the Administrative Agent of a certificate signed by a Responsible Officer of each Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Revolver Increase contemplated by this Agreement, and (cB) certifying that, before and after giving effect to such Revolver Increase, (x) the representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the effective date of this Agreement, except to the extent that (1) such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (3) the representation and warranty contained in subsection (a) of Section 4.01 5.05 of the Credit Agreement shall be satisfied, and each of deemed to refer to the Administrative Agent and the Incremental Lenders shall have received a certificate most recent statements furnished pursuant to that effect dated such date and executed by a Financial Officer of Terex.
subsection (a) or (b) The of Section 6.01 of the Credit Agreement, and (y) as of the effective date of this Agreement, no Default exists;
(c) receipt by the Administrative Agent Agent, for the account of the New Lender, a fee (the “New Lender Upfront Fee”) equal to $250,000;
(d) receipt by the Arranger of all fees payable to the Arranger in connection with the Revolver Increase pursuant to and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions terms of the Fee Letter; and
(e) receipt by the Administrative Agent of an Administrative Questionnaire completed by the New Lender and any documentation required to be delivered by the New Lender pursuant to Section 2.03 3.01 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.;
Appears in 1 contract
Sources: Lender Joinder Agreement (American Residential Properties, Inc.)
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be this Agreement is subject to the prior or concurrent satisfaction of each of the following conditions precedent:(the date of such satisfaction, the “Effective Date”):
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.:
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a fully executed copy of this Agreement duly executed by Borrower, Administrative Agent, and the Required Lenders;
(ii) a fully executed copy of the Consent and Reaffirmation attached hereto executed by Newco and each other Guarantor with respect to the Guaranty;
(iii) a certificate of incorporationthe secretary or assistant secretary (or equivalent officer) of Borrower and Newco dated as of the Effective Date, including all amendments theretocertifying on behalf of such Person (A) that attached thereto are true, correct and complete copies of Terex, (1) the articles or certificate of incorporation or organization (or equivalent document) of such Person certified as of a recent date by the Secretary of State of the State state of Delawareits organization and (2) the bylaws, operating agreement, or applicable governing document of such Person, (B) that attached thereto is a true, correct and complete copy of a certificate as to the good standing of Terex such Person as of a recent date date, from such the Secretary of State; State (iior other applicable Governmental Authority) a certificate of the Secretary or Assistant Secretary its jurisdiction of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) beloworganization, (BC) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or board of Terex members or equivalent governing body) of such Person authorizing the execution, delivery and performance of this Agreement and and/or the borrowings hereunderother Loan Documents to which such person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate effect as of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) abovesuch certificate, and (D) as to the signature and incumbency and specimen signature certificates of each officer its officers executing this Agreement and/or any of the other Loan Documents or any other document delivered in connection herewith on behalf of Terex; such Person (iii) together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the Secretary officer or Assistant Secretary authorized person executing the certificate pursuant to in this clause (ii) above; and iii));
(iv) a Solvency Certificate from Borrower certifying that, after giving effect to the Merger Transaction and the other transactions to occur on the Effective Date, the Consolidated Group, taken as a whole and on a consolidated basis, are Solvent;
(v) a duly completed Compliance Certificate, calculated giving pro forma effect to this Agreement and the transactions related hereto, for the fiscal quarter of the Consolidated Group most recently ended prior to the Effective Date, together with backup documentation acceptable to Administrative Agent;
(vi) a certificate of a Responsible Officer of Borrower dated as of the Effective Date, certifying on behalf of Borrower (A) as to the matters set forth in clauses (b) and (c) below, and (B) that the execution, delivery and performance of this Agreement and the consummation of the Merger Transaction and all other transactions related hereto and thereto will not constitute a default or breach under the terms of any material agreement or instrument listed by CIM NAV as an exhibit to its Form 10-Q report filed with the SEC for the quarter ended September 30, 2021;
(vii) a favorable opinion from counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such other documents matters concerning the Loan Parties and the Loan Documents as the Incremental Lenders or the Administrative Agent may reasonably request.; and
(eviii) The Incremental Lenders a certified copy of the certificate of merger issued by the Department of Assessments and Taxation of the State of Maryland evidencing the Merger Transaction;
(b) subject to the consents and amendments provided herein, no Default or Event of Default shall have occurred and be continuing or shall be caused by the transactions contemplated by this Agreement;
(c) the representations and warranties set forth in Section 5 hereof are true and correct in all material respects as of the date hereof, except to the extent such representation or warranty (i) specifically relates to an earlier date, in which case such representation or warranty is true and correct in all material respects as of such earlier date, or (ii) is qualified by materiality, Material Adverse Effect or words of similar effect, in which case such representation or warranty is true and correct in all respects;
(d) Administrative Agent, on behalf of itself and the Lenders, as applicable, shall have received evidence reasonably satisfactory payment for all fees and expenses required to them that be paid on or prior to the Effective Date pursuant to this Agreement or any other Loan Document;
(i) At least five (5) days prior to the bonds issued by Fantuzzi Finance S.A. Effective Date, all documentation and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged other information regarding Borrower and each other Loan Party requested in full connection with applicable “know your customer” and no amounts payable anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in respect writing of such bonds remain outstanding Borrower at least ten (10) days prior to the Effective Date, and (ii) to the extent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the date hereof, any guarantees relating Lender that has requested, in a written notice to such bonds Borrower at least ten (10) days prior to the date hereof, a Beneficial Ownership Certification in relation to Borrower shall have been irrevocably cancelled received such Beneficial Ownership Certification (provided that, upon the execution and no amounts payable delivery by such Lender of its signature page to this Agreement, the condition set forth in respect of this clause (e)(ii) shall be deemed to be satisfied); and
(f) Administrative Agent shall have received such guarantees remain outstandingother certificates, documents and agreements as Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Sources: Modification Agreement (Cim Real Estate Finance Trust, Inc.)
Conditions Precedent. The obligation This Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to date first written above (the “Amendment Closing Date”) upon the satisfaction of the following conditions precedent:
(a) On This Amendment shall have been duly executed and delivered to the Incremental Term Loan Closing Date, Agent by each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of Borrowers, the Credit Agreement shall be satisfiedGuarantors, the Agent and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of TerexLenders.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 Base Certificate dated as of the Credit Amendment Closing Date, in form and substance reasonably satisfactory to it and providing a determination of the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base after giving effect to this Amendment, and the Agent shall be satisfied that, both before and after giving effect to all extensions of credit outstanding or to be made on the Amendment Closing Date, Excess Availability under the Loan and Security Agreement, as amended by this Amendment, shall not be less than $250,000,000.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably requestbe satisfied that the Security Documents remain effective to create in favor of the Agent a legal, valid and Terex hereby requests such counsel enforceable first priority (subject only to deliver such opinionPermitted Liens entitled to priority under Applicable Law) perfected security interest in and Lien upon the Collateral.
(d) The Administrative Agent and the Incremental Lenders shall each have received a certificate of a duly authorized officer of each Obligor (with such certification to be in such Person’s capacity as an officer of such Obligor and not in such Person’s individual capacity), (i) a copy of certifying (x) that such Obligor’s Organic Documents certified by such Obligor to the certificate of incorporationAgent on the Closing Date remain in full force and effect, including all amendments theretowithout amendment (or, of Terexif such Organic Documents have been amended, attaching copies thereof, certified as of a recent date by the Secretary of State or another official of the State such Obligor’s jurisdiction of Delawareorganization), and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (Ay) that an attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by authorizing execution and delivery of the board of directors of Terex authorizing the execution, delivery Amendment is true and performance of this Agreement and the borrowings hereundercomplete, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has were duly adopted, have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant amended, modified or revoked, and constitute all resolutions adopted with respect to clause (i) abovethis Amendment, and (Dii) attaching good standing or subsistence certificates, as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of applicable, for such Obligor, issued by the Secretary of State or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) other appropriate official of such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestObligor’s jurisdiction of organization.
(e) The Incremental Lenders Agent shall have received evidence a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, on behalf of the Borrowers and each of the Guarantors, as well as any relevant local counsel to Obligors (it being understood that no local counsel opinion shall be required for The Bon-Ton Giftco, Inc.), in form and substance reasonably satisfactory to them the Agent and each of the Lenders (including an opinion regarding the absence of any conflict between the Loan and Security Agreement as amended hereby and the Mortgage Loan Debt and the Senior Note Debt), it being understood that the Borrowers and the Guarantors shall not be required to deliver any enforceability opinions with respect to the Mortgages.
(f) The Borrowers shall have paid (i) to the bonds issued by Fantuzzi Finance S.A. Agent all fees that are due and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding on the Amendment Closing Date and (ii) any guarantees relating to such bonds other Person(s) as are entitled thereto, all reasonable and documented fees and out-of-pocket expenses to be paid to the Agent and Lenders on the Amendment Closing Date (including, without limitation, all reasonable and documented fees, out-of-pocket charges and disbursements of counsel to the Agent), accounting, appraisal, consulting and other reasonable and documented fees and out-of-pocket expenses to the extent invoiced prior to or on the Amendment Closing Date.
(g) Both immediately before, and immediately after giving effect to this Amendment and transactions hereunder, including all extensions of credit to be made on the Amendment Closing Date, (i) no Default or Event of Default shall exist and (ii) the representations and warranties set forth in Section 9 of the Loan and Security Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to the extent that any representation or warranty is already qualified or modified by materiality in the text thereof) as of the Amendment Closing Date, as though made on and as of such date (except to the extent that such representation or warranty relates to an earlier date or period, in which case as of such earlier date or period).
(h) The Agent shall have been irrevocably cancelled received a detailed monthly availability forecast prepared by management of the Borrowers, in a format substantially similar to that contained in the Borrowing Base Certificate, for the period beginning on the Amendment Closing Date and no amounts payable in respect of such guarantees remain outstandingending on January 31, 2014.
Appears in 1 contract
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder this Amendment Agreement shall be subject to satisfaction fulfillment of the following conditions precedent:
(a) On The Agent shall have received on the Incremental Term Loan Closing Datedate hereof, in form and substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Amendment Agreement and replacement Notes and Holder Certificate, reflecting the amended Commitments and Holder Commitment (in substitution for the Notes and Holder Certificate previously issued to Bank of America);
(ii) a fully-executed amended and restated Mortgage Instrument with respect to the Property in Miramar, Florida (the "Miramar Property");
(iii) a fully-executed modification of the Memorandum of Lease and Lease Supplement with respect to the Miramar Property;
(iv) a fully-executed notice of future advance with respect to the Miramar Property;
(v) an endorsement to the title insurance policies with respect to the Miramar Property, reflecting the amended documents and the increased amounts of Commitments and Holder Commitments;
(vi) an opinion of outside counsel to the Lessee and the Guarantors, addressed to the Agent, the Owner Trustee and the Lenders;
(vii) a certificate of the Secretary or an Assistant Secretary of each of the conditions set forth Lessee and each Guarantor in paragraphs such form as is reasonably acceptable to the Agent attaching and certifying as to (bA) the resolutions of the Board of Directors of Lessee or such Guarantor (as the case may be) duly authorizing the execution, delivery and performance by Lessee or such Guarantor (cas the case may be) of Section 4.01 of the Credit this Amendment Agreement shall be satisfied, and each of the Administrative Agent other Operative Agreements delivered in connection with this Amendment Agreement to which such Lessee or Guarantor is or will be a party, (B) the fact that neither its certificate of incorporation nor its bylaws have been changed from the versions that were certified and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory delivered to the Administrative Agent and on the Incremental LendersInitial Closing Date (or if they have been changed, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, incorporation or by-laws certified as of a recent date by the Secretary of State of the State of Delawareits incorporation), and (C) the incumbency and signature of persons authorized to execute and deliver on its behalf this Amendment Agreement and each of the other Operative Agreements delivered in connection with this Amendment Agreement to which such Lessee or Guarantor is a certificate as to party;
(viii) payment by the good standing Lessee of Terex all fees required by that certain letter agreement dated as of a recent date from such Secretary of State; (ii) a certificate of February 18, 2000 between the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement Lessee and the borrowings hereunderAgent, and that such resolutions have not been modifiedcertain invoice dated February __, rescinded or amended 2000, from Banc of America Securities LLC to Aviation Sales, and are in full force accepted by Dale S. Baker, as Chairman of the Board, President and effect, Chief Executiv▇ ▇▇fficer of Aviation Sales;
(Cix) evidence of an irrevocable written request by the Lessee to Citibank that the certificate Letter of incorporation Credit be increased to $12,000,000 by March 1, 2000;
(x) a fully executed amendment to the Intercreditor Agreement;
(xi) a fully executed Standstill Letter, and the satisfaction of Terex has not been amended since the conditions to effectiveness of the Standstill Letter; and
(xii) any additional agreements, instruments or documents which it may reasonably request in connection herewith;
(b) The correctness in all material respects on the date hereof of the last amendment thereto shown representations and warranties of the Owner Trustee, Construction Agent and the Lessee contained herein and in each of the Operative Agreements; and
(c) No Default or Event of Default shall have occurred and be continuing on the certificate of good standing furnished pursuant to clause date hereof (i) above, and (D) as to except the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestStandstill Events).
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Agreement shall become effective only upon satisfaction of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction each of the following conditions precedent:precedent (the date of such satisfaction, the “Third Amendment Effective Date”):
(a) On the Incremental Term Loan Closing Date, The Agent shall have received each of the conditions following, each in form and substance reasonably satisfactory to the Agent:
(i) counterparts of this Agreement duly executed by the Borrower, the Required Lenders, and the Agent;
(ii) counterparts of the Consent and Reaffirmation of the Guarantors attached hereto duly executed by each of the Guarantors;
(iii) a duly executed certificate of the Borrower stating that the Borrower is in compliance with the covenants set forth in paragraphs (b) and (c) of Section 4.01 Sections 8.1 through 8.3 of the Credit Agreement shall be satisfiedwith respect to the covenant levels at the time of the most recent Compliance Certificate, in each case, immediately before and after giving pro forma effect to the Transaction and attaching calculations demonstrating such compliance;
(iv) an executed copy of the Contribution Agreement; and
(v) (A) an executed copy of Amendment No. 3 (the “TopCo Credit Agreement Amendment”) to that certain Senior Secured Credit Facility, dated as of November 25, 2018 (the “TopCo Credit Facility”), among the Transferor, as borrower, the financial institutions from time to time party thereto, as lenders, and each of the Administrative Agent other parties thereto, and all conditions precedent to the Incremental Lenders TopCo Credit Agreement Amendment shall have received a certificate been met or waived in accordance with the terms thereof and (B) evidence that all security interests arising pursuant to that effect dated such date the TopCo Credit Facility or any security agreement, pledge agreement or other agreement related thereto in the equity interests of TLP Management Services and executed by a Financial Officer its Subsidiaries and any of Terextheir other assets and property, real or personal, tangible or intangible, shall have been terminated and released.
(b) The Administrative the Borrower shall have paid to the Agent all fees and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of expenses due and payable under the Credit Agreement.
Agreement (c) The Administrative Agent shall have received, on behalf including the fees of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory counsel to the Administrative Agent and the Incremental Lenders, extent invoiced at least one (i1) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date Business Day prior to the date of the resolutions described Third Amendment Effective Date) and in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of connection with this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestAgreement.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners LLC)
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder amendments and waivers contained herein shall be subject to the satisfaction of the following conditions precedent:precedent in a manner acceptable to Agent as soon as possible but in any event not later than April 30, 2004 (the date upon which all of the conditions precedent set forth in Section 7 hereof shall have been satisfied in a manner acceptable to Agent shall be referred to herein as the “Effective Date”):
(a) On the Incremental Term Loan Closing Datereceipt by Agent of an original of this Amendment No. 2, each of duly authorized, executed and delivered by Borrowers and Guarantor on the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.hereof;
(b) The Administrative the receipt by Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.$37,500 fee referred to in Section 4(a) hereof on the date hereof;
(c) The Administrative the receipt by Agent shall have receivedof a copy of any agreements, on behalf of itself documents and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory instruments with respect to the Administrative Agent and settlement of the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Judgment in favor of Taracorp;
(d) The Administrative all requisite corporate action and proceedings in connection with this Amendment No. 2 shall be satisfactory in form and substance to Agent, and Agent and the Incremental Lenders shall each have received (i) a copy all information and copies of the certificate of incorporationall documents, including all amendments theretorecords of requisite corporate action and proceedings, of Terexwhich Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified as by appropriate corporate officers or governmental authorities on the date hereof;
(e) the receipt by Agent of a recent date by the Secretary of State of the State of Delawaretrue, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true correct and complete copy of the by-laws waiver of Terex as in effect on the Incremental Term Loan Closing Date Agent and at all times since a date Term Loan Lenders with respect to any “Event of Default” arising under the Term Loan Documents (as such term is defined in the Term Loan Documents) prior to the date hereof as duly authorized, executed and delivered by Term Loan Agent and each Term Loan Lender; and
(f) as of the resolutions described in clause (B) below, (B) date that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date all of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. foregoing conditions precedent shall have been discharged in full satisfied, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and no amounts payable in respect of be continuing on such bonds remain outstanding and date (ii) any guarantees relating after giving effect to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingthe provisions hereof).
Appears in 1 contract
Sources: Loan and Security Agreement (Doe Run Resources Corp)
Conditions Precedent. The obligation of conditions referred to in Clause 3.1 are that the Incremental Lenders to make Incremental Term Loans hereunder Lender shall be subject to satisfaction of have received the following conditions precedentdocuments and evidence in all respects in form and substance satisfactory to the Lender and its lawyers on or before 31 January 2011 (the failure of which shall constitute an Event of Default under the Loan Agreement) or such later date as the Lender may agree with the Borrower and the other Security Parties:
(a) On the Incremental Term Loan Closing Date, each documents of the conditions set forth kind specified in paragraphs Clause 4.1 (a), (b) and (c) of Section 4.01 of the Credit Loan Agreement shall be satisfied, as amended and each of the Administrative Agent supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Mortgage Addendum;
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with executed original of this Agreement duly executed by the provisions of Section 2.03 of the Credit Agreement.parties to it;
(c) The Administrative Agent shall have received, a duly executed original of the Mortgage Addendum;
(d) evidence that the agent for service of process appointed by the Security Parties under this Agreement has accepted such appointment;
(e) favourable legal opinions from lawyers appointed by the Lender on behalf such matters concerning the laws of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Panama;
(f) evidence that each of Terexthe TBS Credit Facilities (other than the Loan) have been restructured upon the Effective Date as per the Global Restructuring Term Sheet with the approval of all of the creditors under such TBS Credit Facilities;
(g) evidence, reasonably satisfactory to the Administrative Agent Lender, that funding or a commitment to fund new capital in the Guarantor 4 is in place in accordance with Clause 4 including evidence that the Initial Capital Infusion has been made and delivery of duly executed copies of the Investment Agreement and the Incremental Lenders, Escrow Agreement;
(h) schedule of capital expenditure necessary to complete the construction programmes in respect of any current newbuildings and to maintain the existing fleet of the Guarantor 4 and its subsidiaries’ approved by the Lender and attached hereto as Appendix B;
(i) dated the Incremental Term Loan Closing Date, (ii) addressed confirmation of Intermodul Shipping Inc. to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each Lender that they have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of been informed about this Agreement and that the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are Quadripartite Agreement shall remain in full force and effect;
(j) outstanding amounts of Financial Indebtedness as of 31 December 2010; and
(k) any further opinions, (C) that consents, agreements and documents in connection with this Agreement and the certificate of incorporation of Terex has not been amended since Finance Documents which the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as Lender may reasonably request by notice to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as Security Parties prior to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestEffective Date.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder This Amendment shall be subject to effective upon satisfaction of the following conditions precedent:
(a) On Receipt by the Administrative Agent of counterparts of this Amendment duly executed by (i) a Responsible Officer of the Company, the Designated Borrowers and the Guarantors and (ii) each of the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) Lenders and (cif any) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terexother Required Lenders.
(b) The Receipt by the Administrative Agent of Incremental Term Notes dated the First Amendment Effective Date executed by a Responsible Officer of the Company in favor of each Incremental Term Loan Lender requesting an Incremental Term Note from the Company.
(c) Receipt by the Administrative Agent of a Pro Forma Compliance Certificate, duly executed by a Responsible Officer of the Parent, demonstrating that, upon giving effect to the institution of the Incremental Term Loan and the Incremental Lenders shall consummation of the STP Acquisition, in each have received case on a duly completed Borrowing Request Pro Forma Basis, the Loan Parties are in accordance compliance with the provisions financial covenants set forth in Section 8.11 of the Credit Agreement as of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 2.03 7.01(a) or (b) of the Credit Agreement.
(cd) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to Receipt by the Administrative Agent and of a certificate of each Loan Party, duly executed by a Responsible Officer of each such Loan Party, dated the Incremental Lendersdate hereof, (i) dated certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Incremental Term Loan Closing DateLoan, (ii) addressed to the Administrative Agent certifying and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy attaching copies of the certificate Organization Documents of incorporation, including all amendments thereto, of Terexsuch Loan Party, certified to be true and complete as of a recent date by the Secretary of State appropriate Governmental Authority of the State state or other jurisdiction of Delawareits incorporation or organization, and a certificate where applicable (or, as to the good standing of Terex as of a recent date from any such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) Organization Documents that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modifiedamended, rescinded modified or amended terminated since the Initial Borrowing Date, certifying that such Organization Documents have not been amended, modified or terminated since the Initial Borrowing Date and are remain in full force and effect, (C) that and true and complete, in the certificate of incorporation of Terex has not been amended since form delivered to the date of the last amendment thereto shown Administrative Agent on the certificate of good standing furnished pursuant to clause Initial Borrowing Date), (iiii) above, and (D) certifying as to the incumbency incumbency, identity, authority and specimen signature capacity of each officer executing Responsible Officer of such Loan Party authorized to act as a Responsible Officer in connection with the Incremental Term Loan, this Agreement on behalf of Terex; (iii) Amendment and the other Loan Documents to which such Loan Party is a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; party, and (iv) such other documents as in the case of the Company, certifying that, before and after giving effect to the Incremental Lenders Term Loan, (A) the representations and warranties contained in Article VI of the Credit Agreement and the other Loan Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Administrative Agent may reasonably requestFirst Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date (and, for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Credit Agreement), and (B) no Default or Event of Default exists.
(e) Receipt by the Administrative Agent of such documents and certifications as the Administrative Agent may require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(f) Receipt by the Administrative Agent of favorable domestic opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Incremental Term Loan Lender), and dated as of the First Amendment Effective Date, in form and substance satisfactory to the Administrative Agent.
(g) Receipt by the Administrative Agent of evidence satisfactory to the Administrative Agent that the STP Acquisition has been consummated or will be consummated substantially concurrently with (and, in any case, within three (3) Business Days after) the funding of the Incremental Term Loan (including, if requested by the Administrative Agent, a certificate duly executed by a Responsible Officer of the Parent to such effect).
(h) Receipt by MLPFS (or any of its designated Affiliates) and the Incremental Term Loan Lenders of any fees required to be paid on or before the First Amendment Effective Date.
(i) The Incremental Lenders Administrative Agent shall have received evidence reasonably satisfactory a Loan Notice with respect to them that the Incremental Term Loan in accordance with the requirements of the Credit Agreement.
(ij) Unless waived by the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. Administrative Agent, the Company shall have been discharged in full paid all fees, charges and no disbursements of counsel to the Administrative Agent (directly to such counsel, if so requested by the Administrative Agent) to the extent invoiced prior to or on the First Amendment Effective Date, plus such additional amounts payable in respect of such bonds remain outstanding fees, charges and (ii) any guarantees relating to such bonds disbursements as shall have been irrevocably cancelled and no amounts payable in respect constitute its reasonable estimate of such guarantees remain outstandingfees, 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 Company and the Administrative Agent).
Appears in 1 contract
Conditions Precedent. The obligation of Save as the Incremental Lenders to make Incremental Term Loans hereunder shall Master Issuer and the Funding 2 Security Trustee may otherwise agree, each Loan Tranche will not be subject to satisfaction of the following conditions precedentavailable for utilisation on a Closing Date unless:
(a) On the Incremental Term Loan related Series and Class of Notes has been issued by the Master Issuer on the relevant Closing Date, each Date and the subscription proceeds thereof have been received by or on behalf of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Master Issuer;
(b) The Administrative Agent not later than [2.00 pm (London time)] on the relevant Closing Date, Funding 2 and the Incremental Lenders Master Issuer have signed a Loan Tranche Supplement (generally in the form set out in Schedule 2 (Form of Loan Tranche Supplement)) which shall each have received a duly completed Borrowing Request oblige Funding 2 to borrow the whole amount stated in accordance with the provisions Loan Tranche Supplement on the Closing Date subject to the terms of Section 2.03 of the Credit this Agreement.;
(c) The Administrative Agent shall have received, on behalf of itself and Funding 2 has confirmed in the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, applicable Loan Tranche Supplement that:
(i) dated no Funding 2 Intercompany Loan Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the Incremental Term making of such Loan Closing Date, Tranche;
(ii) addressed the representations set out in Clause 13 (Representations and warranties of Funding 2) are true on and as of the Closing Date by reference to the Administrative Agent facts and the Incremental Lenders and circumstances then existing;
(iii) covering such matters relating to there is no debit balance on the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Funding 2 Principal Deficiency Ledger;
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as Funding 2 has delivered to the good standing of Terex as of Funding 2 Security Trustee a recent date from such Secretary of State; (ii) a solvency certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date in form and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior substance satisfactory to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.Funding 2 Security Trustee;
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that Master Issuer has confirmed in the applicable Loan Tranche Supplement that:
(i) no Issuer Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect making of such bonds remain outstanding and Loan Tranche; and
(ii) the aggregate amount of the Loan Tranches to be made on such Closing Date and any guarantees relating Loan Tranches outstanding on such Closing Date do not exceed the Total Credit Commitment;
(f) each of the Rating Agencies has confirmed in writing to such bonds shall the Funding 2 Security Trustee that there will not, as a result of the Master Issuer issuing any Notes, be any reduction, withdrawal or qualification of the then current ratings by the Rating Agencies of any existing Notes; and
(g) all other conditions precedent specified in the applicable Loan Tranche Supplement have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingsatisfied.
Appears in 1 contract
Sources: Global Intercompany Loan Agreement (Granite Finance Trustees LTD)
Conditions Precedent. The obligation This Amendment shall be effective when the Lender shall have received an executed original hereof, together with each of the Incremental Lenders following, each in substance and form acceptable to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentLender in its sole discretion:
(a) On the Incremental Term Loan Closing Date, each The Acknowledgment and Agreement of the conditions Guarantor set forth in paragraphs (b) and (c) at the end of Section 4.01 of the Credit Agreement shall be satisfiedthis Amendment, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and duly executed by a Financial Officer of Terexthe Guarantor.
(b) The Administrative Agent A Certificate of the Secretary of the Borrower certifying as to (i) the resolutions of the board of directors of the Borrower approving the execution and delivery of this Amendment, (ii) the Incremental Lenders shall each have received a duly completed Borrowing Request fact that the articles of incorporation and bylaws of the Borrower, which were certified and delivered to the Lender pursuant to the Certificate of Authority of the Borrower's secretary or assistant secretary dated as of October 9, 1998 in accordance connection with the provisions of Section 2.03 execution and delivery of the Credit AgreementAgreement continue in full force and effect and have not been amended or otherwise modified except as set forth in the Certificate to be delivered, and (iii) certifying that the officers and agents of the Borrower who have been certified to the Lender, pursuant to the Certificate of Authority of the Borrower's secretary or assistant secretary dated as of October 9, 1998, as being authorized to sign and to act on behalf of the Borrower continue to be so authorized or setting forth the sample signatures of each of the officers and agents of the Borrower authorized to execute and deliver this Amendment and all other documents, agreements and certificates on behalf of the Borrower.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written An opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory the Borrower's counsel as to the Administrative Agent matters set forth in paragraphs 5(a) and the Incremental Lenders, (i5(b) dated the Incremental Term Loan Closing Date, (ii) addressed hereof and as to the Administrative Agent and the Incremental Lenders and (iii) covering such other matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders Lender shall reasonably request, and Terex hereby requests such counsel to deliver such opinionrequire.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such Such other documents matters as the Incremental Lenders or the Administrative Agent Lender may reasonably requestrequire.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit and Security Agreement (Royal Precision Inc)
Conditions Precedent. The obligation This Loan Agreement and the Borrower’s ability to draw down the principal amount of the Incremental Lenders to make Incremental Term Loans hereunder Loan shall be subject to satisfaction become effective as of the date on which the following conditions precedent:precedent are satisfied or waived (such date, the “Effective Date”)
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs The Lender (bor its counsel) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received from the Borrower either (i) a certificate counterpart of this Loan Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Lender (which may include facsimile or other electronic transmission of a signed counterpart of this Incremental Amendment) that effect dated such date and executed by party has signed a Financial Officer counterpart of Terexthis Loan Agreement.
(b) The Administrative Agent and the Incremental Lenders Lender shall each have received a duly completed Borrowing Request in accordance with written opinion (addressed to the provisions of Section 2.03 Lender and dated as of the Credit Effective Date) of counsel for the Loan Parties. The opinion shall include customary third-party closing opinions with respect to, among other customary items, due authorization and execution of this Loan Agreement, enforceability of this Loan Agreement under applicable law and attachment and perfection of liens.
(c) The Administrative Agent Lender shall have receivedreceived as to each Loan Party (i) a copy of each organizational document of such Loan Party certified, on behalf to the extent applicable, as of itself a recent date by the applicable governmental authority, (ii) signature and incumbency certificates of the Incremental Lendersapplicable officers or directors of such Loan Party executing this Loan Agreement and any other related documents to which it is a party or (y) written certification by such Loan Party’s secretary, assistant secretary or other responsible officer that such Loan Party’s signature and incumbency certificates most recently delivered to the Lender prior to the Effective Date remain true and correct as of the Effective Date, (iii) copies of resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Loan Agreement and any other related document to which it is a favorable written opinion party, certified as of the Effective Date by a secretary, an assistant secretary or a responsible officer of such Loan Party as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable governmental authority of each Loan Party’s jurisdiction of incorporation, organization or formation as of a reasonably recent date.
(d) Each of the Lender, the Collateral Agent, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent ▇ and the Incremental LendersIndependent Director shall have received all its respective fees, (i) dated premiums and expenses required to be paid on the Incremental Term Loan Closing Effective Date, (ii) addressed including reimbursement or payment of all reasonable and documented out-of-pocket expenses required to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent be reimbursed or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary paid on or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date Effective Date (including the fees and expenses of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestcounsel).
(e) The Incremental Lenders Borrower shall (i)(A) have caused Remark SPV to amend and restate the governing documents and (B) shall have received evidence reasonably satisfactory successfully formed an entity owning 100% of Holdco SPV, in each case in accordance with Section 15 hereunder and to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect satisfaction of such bonds remain outstanding the Lender and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled appointed ▇▇▇ ▇▇▇▇▇▇▇ as the Independent Director of Holdco SPV and no amounts payable in respect of such guarantees remain outstandingRemark SPV.
Appears in 1 contract
Sources: Senior Secured Loan Agreement (Remark Holdings, Inc.)
Conditions Precedent. The obligation of This Amendment shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction first date upon which each of the following conditions precedent:precedent has been waived or satisfied in a manner satisfactory to Agent (such date being the “Amendment No. 1 Effective Date”):
(ai) On the Incremental Term Loan Closing DateAgent shall have received this Amendment, each of the conditions set forth in paragraphs (b) duly authorized, executed and (c) of Section 4.01 of the Credit Agreement shall be satisfieddelivered by Borrower, and each of the Administrative Agent and the Incremental Lenders (the Credit Agreement, Exhibits and Schedules as so amended by this Amendment being referred to herein as the “Amended Credit Agreement”);
(ii) Agent shall have received Amendment No. 1 to Intercreditor Agreement, duly authorized, executed and delivered by Agent and Hercules Technology Growth Capital, Inc., a Maryland corporation, as lender under the Hercules Facility, and acknowledged and agreed to by Borrower;
(iii) on the date of this Amendment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, nor shall either result from the entry into this Amendment; 2
(iv) the representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of this Amendment and on the Amendment No. 1 Effective Date (except, in each case, to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of such earlier date);
(v) Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer from the Secretary of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental LendersBorrower, (i) dated attesting to the Incremental Term Loan Closing Dateresolutions of Borrower’s Board of Directors authorizing its execution and delivery of this Amendment and performance of the Amended Credit Agreement, (ii) addressed authorizing specific officers of Borrower to the Administrative Agent and the Incremental Lenders execute this Amendment and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as attesting to the incumbency and specimen signature signatures of each officer executing this Agreement on behalf such specific officers of Terex; Borrower;
(iiivi) Agents shall have received a certificate of another officer as status with respect to Borrower, dated a date reasonably close to the incumbency and specimen signature Amendment No. 1 Effective Date, such certificate to be issued by the appropriate officer of the Secretary or Assistant Secretary executing the certificate pursuant jurisdiction of organization of Borrower and each jurisdiction in which its failure to (ii) above; and (iv) be duly qualified could reasonably be expected to result in a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.jurisdiction;
(evii) The Incremental Lenders Borrower shall have received evidence reasonably satisfactory paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Amendment (to them that the extent incurred on or prior to the Amendment No. 1 Effective Date); and
(iviii) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. Borrower shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating paid to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingAgent an amendment fee equal to $50,000.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to date above written upon the satisfaction of the following conditions precedent:
(a) On The Agent shall have received counterparts hereof executed by each Borrower and each Lender hereto;
(b) The Agent shall have received, with respect to the Incremental Borrowers, (i) audited financial statements for the period ending December 31, 2008 and (ii) unaudited interim financial statements for the period ending June 30, 2009.
(c) The Agent shall have received evidence in form and substance satisfactory to Agent that demonstrates that the Funded Debt to Consolidated EBITDA Leverage Ratio determined as of the Increased Term Loan Closing Effective Date is not greater than 2.50 to 1.00 (with EBITDA calculated using the unaudited financial information for the six month period ended June 30, 2009 on an annualized basis).
(d) Since December 31,2008, until the Increased Term Loan Effective Date, there shall have been (i) no change in the condition, financial or otherwise, operations, assets, income and/or prospects of the Borrowers and its Affiliates that has had a Material Adverse Effect, and (ii) no material adverse change in the capital markets or any governmental regulations or policies affecting such Borrower.
(e) The Agent shall have received evidence in form and substance satisfactory to Agent that demonstrates a minimum consolidated EBITDA for the Borrowers of at least $20,000,000 on June 30, 2009 (with EBITDA calculated using the unaudited financial information for the six month period ended June 30, 2009 on an annualized basis).
(f) Lenders satisfactory to the Borrowers and Arranger shall have agreed to fund the Increased Term Loan.
(g) A Term Loan Note representing the Increased Term Loan shall have been executed by the Borrowers and delivered to each Lender funding the Increased Term Loan.
(h) The Agent shall have received certificates, in form and substance reasonably satisfactory to it, from the Chief Financial Officer of each Borrower certifying that, after giving effect to the Increased Term Loan and transactions contemplated hereunder, (i) the Borrowers, on consolidated basis, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 6 of this Amendment are true, complete and correct in all material respects; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(i) The Borrowers shall have paid all fees, costs and expenses to be paid to the Agent and the Lenders on or prior to the Increased Term Loan Effective Date.
(j) Each of the conditions set forth in paragraphs Section 6.1(a) (bthe second and third sentence), (d), (e), (f), (h), (i), (j), (n) and (cu) of Section 4.01 the Amended and Restated Loan Agreement has been complied with as of the Credit Agreement shall be satisfiedIncreased Term Loan Effective Date, all in form and each of substance satisfactory to the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of TerexLenders.
(bk) The Administrative condition set forth in Section 6.2(e) of the Amended and Restated Loan Agreement has been complied with as of the Increased Term Loan Effective Date, in form and substance satisfactory to the Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit AgreementLenders.
(cI) The Administrative Agent shall have receivedEach of the conditions set forth in Section 6.3(a) through (e) of the Amended and Restated Loan Agreement has been complied with as of the Increased Term Loan Effective Date and with respect to the Increased Term Loan, on behalf of itself all in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of This Amendment shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of date (the "Effective Date") on which the following conditions precedentprecedent have been satisfied:
(a) On receipt by the Incremental Term Loan Closing DateAdministrative Agent of multiple counterparts of this Amendment, duly executed and delivered by each of the conditions set forth in paragraphs (b) Credit Parties, the Required Lenders and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Agent;
(b) The receipt by the Administrative Agent of duly executed copies of the amended and restated Pledge Agreement and the Incremental Lenders shall amended and restated Intercreditor Agreement, each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance satisfactory to the Administrative Agent and the Incremental Lenders, ;
(c) receipt by the Administrative Agent of (i) dated copies, certified by an officer of the Incremental Term Loan Closing DateParent as true and complete, of the 2003 Note Purchase Agreement (iiincluding all exhibits and schedules thereto) addressed as originally executed and delivered, together with any amendments or modifications to such 2003 Note Purchase Agreement, such 2003 Note Purchase Agreement and amendments or modifications to be acceptable to the Administrative Agent and (ii) evidence that all of the Incremental Lenders and (iii) covering such matters relating proceeds from the issuance of the 2003 Senior Notes have been used to prepay the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Loans;
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date receipt by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.of copies, certified by an officer of the Parent as true and complete, of the amendments to each of the Note Purchase Agreements, each in form and substance satisfactory to the Administrative Agent;
(e) The Incremental Lenders Administrative Agent shall have received evidence reasonably an opinion, or opinions, in form and substance satisfactory to them that the Administrative Agent dated as of the Effective Date from counsel to the Credit Parties; and
(if) Copies of resolutions of the bonds issued Board of Directors of each Credit Party approving and adopting the Amendment, the transactions contemplated herein and authorizing execution and delivery thereof, certified by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect a secretary or assistant secretary of such bonds remain outstanding Credit Party to be true and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled correct and no amounts payable in respect force and effect as of such guarantees remain outstandingthe date hereof.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall become effective when the Banks shall have received at least four (4) counterparts of this Amendment, duly executed by the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of Company and the Banks and acknowledged by New Century Financial Corporation ("NCFC"), provided the following conditions precedentare satisfied:
(a) On Before and after giving effect to this Amendment, the Incremental Term Loan Closing Date, each representations and warranties of the conditions set forth Company in paragraphs (b) and (c) of Section 4.01 3 of the Credit Agreement and Section 5 of the Pledge and Security Agreement shall be satisfiedtrue and correct as though made on the date hereof, and each except for changes that are permitted by the terms of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of TerexCredit Agreement.
(b) The Administrative Agent Before and the Incremental Lenders after giving effect to this Amendment, no Event of Default and no Unmatured Event of Default shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of occurred and be continuing under the Credit Agreement.
(c) The Administrative Agent No material adverse change in the business, assets, financial condition or prospects of the Company shall have received, on behalf of itself and occurred since the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Effective Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent following shall have been delivered to the Agent, each duly executed or certified, as the case may be, and dated as of the Incremental Lenders shall each have received date of delivery thereof:
(i) a copy certified copies of resolutions of the certificate Board of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State Directors of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary Company authorizing or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing ratifying the execution, delivery and performance of this Agreement and Amendment;
(ii) a certified copy of any amendment or restatement of the borrowings hereunder, and that such resolutions have not been modified, rescinded Articles of Incorporation or amended and are in full force and effect, (C) that the certificate By-laws of incorporation of Terex has not been amended since the Company made or entered following the date of the last amendment thereto shown on most recent certified copies thereof furnished to the certificate Banks;
(iii) certified copies of good standing furnished pursuant all documents evidencing any necessary corporate action, consent or governmental or regulatory approval (if any) with respect to clause this Amendment;
(iiv) abovea favorable opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel to the Company and (D) NCFC, addressed to the Banks, as to the incumbency matters and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to effect set forth on Exhibit H hereto; and
(ii) above; and (ivv) such other documents documents, instruments, opinions and approvals as the Incremental Lenders or the Administrative Agent Banks may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall be effective upon, and the obligations of the Incremental L/C Issuer and the Lenders to make Incremental Term Loans hereunder initial Credit Extensions under the Amended Credit Agreement, shall be subject to the satisfaction of the following conditions precedent:
(a) On Receipt by the Incremental Term Administrative Agent of executed counterparts of this Amendment and the other Loan Closing Documents to be executed on the First Amendment Effective Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and properly executed by a Financial Responsible Officer of Terexthe signing Loan Party (including the New Guarantors) and, in the case of this Amendment, by each Lender.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to Receipt by the Administrative Agent and of favorable opinions of legal counsel to the Incremental LendersLoan Parties (including the New Guarantors), (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and each Lender, dated as of the Incremental Lenders First Amendment Effective Date, and (iii) covering such matters relating in form and substance satisfactory to the Loan Documents as Administrative Agent.
(c) Receipt by the Administrative Agent or of financial projections for the Incremental Lenders shall reasonably requestParent and its Restricted Subsidiaries, in form and Terex hereby requests such counsel substance satisfactory to deliver such opinionthe Administrative Agent, for each year commencing with the fiscal year ended December 31, 2019 through December 31, 2024.
(d) The There shall not have occurred since December 31, 2018 any event or circumstance that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect (it being understood that any matters disclosed in the Parent’s SEC filings prior to August 3, 2019 shall not be deemed to breach this condition).
(e) There shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Parent, threatened in any court or before an arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect.
(f) Receipt by the Administrative Agent of the following, in form and substance reasonably satisfactory to the Incremental Lenders shall each have received Administrative Agent: (i) a copy copies of the certificate Organization Documents of incorporation, each Loan Party (including all amendments thereto, of Terex, the New Guarantors) certified to be true and complete as of a recent date by the Secretary of State appropriate Governmental Authority of the State state or other jurisdiction of Delawareits incorporation or organization, where applicable, and certified by a certificate secretary or assistant secretary of such Loan Party (including the New Guarantors) to be true and correct as of the First Amendment Effective Date (provided, that, to the good standing extent any such Organization Documents previously delivered to the Administrative Agent on the Closing Date have not been amended or modified since the Closing Date, a secretary or assistant secretary of Terex as the applicable Loan Party may provide a certification to such effect in lieu of a recent date from such Secretary of Statedelivery thereof); (ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party (including the New Guarantors) 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 and the other Loan Documents to which such Loan Party (including the New Guarantors) is a party; and (iii) such documents and certifications as the Administrative Agent may require to evidence that each Loan Party (including the New Guarantors) is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(g) Receipt by the Administrative Agent of the following: (i) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party (including the New Guarantors) or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens; (ii) UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral; (iii) subject to Section 7.19 of the Amended Credit Agreement, all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement, together with duly executed in blank and undated stock powers attached thereto; (iv) searches of ownership of, and Liens on, intellectual property of each Loan Party (including the New Guarantors) in the appropriate governmental offices; and (v) duly executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the intellectual property of the Loan Parties (including the New Guarantors).
(h) The Loan Parties (including the New Guarantors) shall have provided to the Administrative Agent and the Lenders (i) the documentation and other customary information reasonably requested by the Administrative Agent and the Lenders in order to comply with applicable law, including the PATRIOT Act and “know your customer” regulations, and (ii) at least five days prior to the First Amendment 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.
(i) Receipt by the Administrative Agent of copies of certificates of insurance of the Loan Parties (including the New Guarantors) and endorsements evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Administrative Agent as additional insured (in the case of liability insurance) or Lender’s loss payee (in the case of hazard insurance) on behalf of the Lenders.
(j) The Acquisition by the Parent, indirectly through the Lunar Acquisition Subsidiary, of one hundred percent (100%) of the outstanding Equity Interests in LeanTeq and LeanTeq Co., Ltd., a corporation incorporated in Taiwan, pursuant to that certain Securities Purchase Agreement, dated as of July 19, 2019 (including all annexes, schedules and exhibits thereto, the “Lunar Acquisition Purchase Agreement”), by and among the Parent, as purchaser, the sellers party thereto, Shareholder Representative Services LLC, as sellers’ representative, and the “Optionholder” party thereto, shall have been consummated, or substantially concurrently with the funding of the Credit Extensions on the First Amendment Effective Date, shall be consummated, in all material respects in accordance with the terms of the Lunar Acquisition Purchase Agreement.
(k) Receipt by the Administrative Agent of a certificate signed by a Responsible Officer of each Borrower certifying that (i) the conditions specified in Sections 2(d), (e) and (j) and Sections 5.02(a) and (b) of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date Amended Credit Agreement have been satisfied, and certifying (Aii) that attached thereto is a true and complete copy of the by-laws Lunar Acquisition Purchase Agreement.
(l) Receipt by the Administrative Agent of Terex certification as in to the financial condition and Solvency of each Borrower individually and of the Parent and its Restricted Subsidiaries on a consolidated basis (after giving effect to the transactions to be consummated on the Incremental Term Loan Closing Date First Amendment Effective Date) from a Responsible Officer of each Borrower.
(m) The Borrowers shall have (i) paid all accrued and at unpaid interest on the loans outstanding under the Credit Agreement to the First Amendment Effective Date, (ii) prepaid any revolving loans outstanding under the Credit Agreement to the extent necessary to keep the outstanding Revolving Loans ratable with the revised Revolving Commitments as of the First Amendment Effective Date, and (iii) paid all times since accrued fees owing to the lenders under the Credit Agreement to the First Amendment Effective Date.
(n) Receipt by the Administrative Agent of any fees required to be paid to the Administrative Agent, the Arrangers and the Lenders on or before the First Amendment Effective Date.
(o) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the First 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 thereafter preclude a date final settling of accounts between the Borrowers and the Administrative Agent). For purposes of determining compliance with the conditions specified in this Section 2, each Lender that has signed this Amendment shall be deemed to have consented to, approved or 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 Administrative Agent shall have received notice from such Lender prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestproposed First Amendment Effective Date specifying its objection thereto.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation amendments described in this Amendment and the obligations of the Incremental Lenders to make Incremental Term Loans hereunder shall Lender set forth in this Amendment will not be subject to satisfaction effective unless and until each of the following conditions precedentprecedent have been satisfied, in form, manner and substance satisfactory to Lender:
(a) On Borrower shall have delivered or caused to be delivered to Lender the Incremental following documents, all of which shall be properly completed, executed and otherwise satisfactory to Lender:
(i) this Amendment;
(ii) the Replacement Note Term Loan Closing DateC in the form attached as Exhibit A.
(iii) A corporate resolution from the Board of Directors of each entity constituting Borrower (and from the Shareholders, each if necessary) approving the transactions contemplated hereby and the execution and delivery of this Amendment;
(iv) A certificate of Borrower's president and corporate assistant secretary attesting to the conditions facts that the corporate resolutions set forth in paragraphs (bSection 7(ii) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions above have not been modified, rescinded modified or amended revoked and are remain in full force and effect, ;
(Cv) A recently issued good standing certificate from the state of organization for each Borrower evidencing that the certificate entity is in good standing and validly existing; and
(vi) Such other items as Lender may require;
(b) After giving effect to this Amendment, there shall not then exist an Event of incorporation of Terex has not been amended since Default;
(c) All the date representations and warranties of the last amendment thereto shown on Loan Parties in the certificate of good standing furnished pursuant to clause (i) aboveLoan Documents as amended hereby shall be true and correct, in all material respects, before and (D) as after giving effect to the incumbency and specimen signature making of each officer executing this Agreement on behalf of TerexAmendment;
(d) Borrower has paid to Lender the Amendment Fee or in lieu thereof the fee has been paid to Lender by an advance by Lender against the Total Facility; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.and
(e) The Incremental Lenders Borrower shall have received evidence reasonably satisfactory paid all reasonable closing costs, recording fees and taxes, appraisal fees and expenses, travel expenses, fees and expenses of Lender's counsel, and all other costs and expenses incurred by Lender in connection with the preparation of this Amendment, which costs, fees and expenses may be paid to them that (i) Lender by an advance by Lender against the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pTotal Facility.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedent:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent This Assignment and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to Sale shall become effective on the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy date by which all of the certificate of incorporationconditions precedent stated in this Section have been satisfied or waived (the “Effective Date”), including all amendments theretobut in no event shall the Effective Date be any earlier than June 1, of Terex2002, certified as of a recent date by the Secretary of State nor any later than June 14, 2002. If any of the State of Delawareconditions precedent stated in this Section are not waived in writing or satisfied on or before June 14, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; 2002, then (iia) a certificate of the Secretary this Assignment shall become void, whereupon neither Assignor nor Assignee shall have any further rights or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of obligations under this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) aboveAssignment, and (Db) Assignor shall continue to be bound by and to perform its obligations under the Lease, as if this Assignment had not been executed. The conditions precedent are as follows:
A. Assignor has vacated and surrendered possession of the Premises and Improvements to Assignee in broom-clean condition and in the same configuration and condition existing on the Execution Date;
B. All of the representations made herein by Assignor in Section 5 and by Assignee in Section 6 are true and correct as of the Execution Date and again as of the Effective Date;
C. Landlord shall have approved this Assignment in writing on terms reasonably acceptable to both Assignor and Assignee;
D. Assignee’s receipt of written approval from Landlord, in a form reasonably acceptable to Assignee, to construct the tenant improvements to the Premises described in Exhibit A attached hereto;
E. Assignor has received from Assignee payment in full of One Million Dollars (US $1,000,000.00) as set forth in Section 9;
F. Assignor has received from Assignee payment in full of Thirty-Eight Thousand One Hundred Ten Dollars ($38,110) as set forth in Section 3;
G. Assignor has received from Assignee payment in full of Two Hundred Forty Thousand Dollars ($240,000), as a security deposit as set forth in Section 15; and
H. Assignor has provided Assignee satisfactory evidence that it has closed out all permits issued to the incumbency it by city, county, and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer state agencies as to the incumbency and specimen signature Assignor’s use of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; Premises and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestthat Assignor has obtained all necessary closing certifications from applicable governmental authorities.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Landlord Consent to Assignment and Assumption of Lease (Kosan Biosciences Inc)
Conditions Precedent. The obligation This Amendment Agreement shall become effective upon the execution and delivery of counterparts hereof by the Incremental Borrowers (including ▇▇▇ Alabama and ▇▇▇ Internet), the Parent, the Agent and the Required Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction and the fulfillment of the following conditions precedentconditions:
1. No unwaived event has occurred and is continuing which constitutes a Default or an Event of Default.
2. All representations and warranties made by the Borrowers (a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (bincluding ▇▇▇ Alabama and ▇▇▇ Internet) and (c) of Section 4.01 of the Credit Parent in this Amendment Agreement shall be satisfied, true and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terexcorrect.
(b) 3. The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate articles of incorporation, including all amendments theretoin each case as amended to date, of Terexeach of ▇▇▇ Alabama and ▇▇▇ Internet, certified as of a recent date by the Secretary of State or other appropriate official of the State state of Delawareits organization, and a certificate as to the good standing of Terex each from such Secretary of State or other official, and a certificate of good standing from the appropriate official of each state in which it is qualified to do business, in each case dated as of a recent date from such Secretary of Statedate; (ii) a certificate of the Secretary or Assistant Secretary of Terex ▇▇▇ Alabama and ▇▇▇ Internet, dated the Incremental Term Loan Closing Second Amendment Date and certifying (A) that attached thereto is a true and complete copy of the by-laws such Person's Code of Terex Regulations as in effect on the Incremental Term Loan Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the board such Person's Board of directors of Terex Directors authorizing the execution, delivery and performance perfor-▇▇▇▇▇ of this Agreement Amendment Agreement, the Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings hereunderCredit Events hereunder and thereunder, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the certificate such Person's articles of incorporation of Terex has not been amended since snce the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such Person's officers executing this Amendment Agreement on behalf of Terexor any other Loan Document delivered in connection herewith; (iii) a certificate of another officer of such Person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Incremental Lenders Agent or any Lender may reasonably request. 8
4. The Agent shall have received a (i) certificate of the Administrative Secretary of each of the Parent and the Borrowers, other than ▇▇▇ Alabama and ▇▇▇ Internet, dated the Second Amendment Date and certifying (A) that attached thereto is a true and complete copy of a resolution adopted by such Person's Board of Directors authorizing the execution, delivery and perfor-▇▇▇▇▇ of this Amendment Agreement, the other Loan Documents and the Credit Events hereunder, as applicable, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (B) that such Person's certificate or articles of incorporation or constitutive documents and such Person's By-laws or Code of Regulations have not been amended since the date of the Amendment Date, and (C) as to the incumbency and specimen signature of each of such Person's officers executing this Amendment Agreement or any other Loan Document delivered in connection herewith; (ii) a certificate of another of such Person's officers as to incumbency and signature of its Secretary; and (iii) such other documents as the Agent or any Lender may reasonably request.
(e) 5. The Incremental Lenders Borrower shall have ordered requests for copies or information on Form UCC-11 or certificates satisfactory to the Agent of a UCC Reporter Service, of all effective UCC financing statements, tax liens and payment liens which name as debtor ▇▇▇ Alabama, ▇▇▇ Internet, ▇▇▇ Investment or AVA and which are filed in the appropriate offices in the States in which are located the chief executive office and other operating offices of ▇▇▇ Alabama, ▇▇▇ Internet ▇▇▇ Investment or AVA, as the case may be, together with copies of such financing statements.
6. The Agent shall have received evidence reasonably satisfactory each document (including, without limitation, each UCC financing statement, assignment and amendment) required by law or requested by the Agent to them be filed, registered or recorded in order to create in favor of the Agent for the benefit of the Lenders a first priority perfected security interest in the Collateral owned by ▇▇▇ Alabama and ▇▇▇ Internet.
7. The Agent shall have received the certificates evidencing the shares of stock of AVA and ▇▇▇ Alabama being pledged pursuant to the Borrowers Pledge Agreement, together with undated stock powers executed in blank, each duly executed by the appropriate Person.
8. The Agent shall have received the certificates evidencing the shares of stock of ▇▇▇ Internet being pledged pursuant to the Parent Pledge Agreement, together with undated stock powers executed in blank, each duly executed by the appropriate Person.
10. The Agent shall have received an amendment to the Agreement between ▇▇▇ Radio and ▇▇▇ Alabama, Inc., dated as of January 1, 1999, permitting ▇▇▇ Alabama to grant and permit to exist a valid, perfected and enforceable first priority Lien on and security interest in the Collateral in favor of the Agent on behalf of the Lenders.
11. The Agent shall have received assignments of any UCC-1 Financing Statements that have been filed by ▇▇▇ Radio, as secured party, against ▇▇▇ Alabama.
12. The Agent shall have received copies of (i) the bonds issued by Fantuzzi Finance S.A. Inventory Purchase Agreement, dated as of May 5, 1999, between ▇▇▇ Radio and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and ▇▇▇ Internet (ii) any guarantees relating to such bonds the Management Services Agreement, dated as of May 5, 1999, between ▇▇▇ Radio and ▇▇▇ Internet, and (iii) the License Agreement, dated as of May 5, 1999 between ▇▇▇ Kansas and ▇▇▇ Internet.
13. The Agent shall have been irrevocably cancelled and no amounts payable in respect of received such guarantees remain outstandingother documents as the Lenders or the Agent or the Agent's counsel shall reasonably deem necessary.
Appears in 1 contract
Sources: Loan Agreement (Rex Stores Corp)
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder This Agreement shall be subject to effective upon satisfaction of only the following conditions precedent:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of receipt by the Administrative Agent of counterparts of (i) this Agreement duly executed by the Loan Parties (including, for the avoidance of doubt, the Super Parent), the Lenders and the Incremental Administrative Agent, (ii) that certain First Amendment to Warrant Issuance Agreement dated as of the Tenth Amendment Effective Date by and among the Lenders shall have received a certificate to that effect dated such date and the Parent, (iii) the Warrants duly executed by a Financial Officer of Terex.the Super Parent and Madryn Health Partners, LP or Madryn Health Partners (Cayman Master), LP, as applicable;
(b) The subject to Section 6(c) below, receipt by the Administrative Agent and of (i) updated insurance certificates evidencing that the Incremental Lenders shall Super Parent, each have received a duly completed Borrowing Request in accordance with of its Domestic Subsidiaries as they exist prior to the provisions of Section 2.03 consummation of the Credit Agreement.
Transactions and their respective properties are covered by insurance policies that are similar in scope and coverage to the Loan Parties’ insurance policies or newly obtained insurance policies that will be in effect on the Tenth Amendment Effective Date and (cii) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, evidence satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to that the Administrative Agent has been named as additional insured (in the case of liability insurance) or lenders’ loss payee (in the case of property and casualty insurance) thereunder, in each case in the Incremental Lenders manner required by the Amended Credit Agreement and in accordance with past practice (iiitogether with applicable endorsements);
(c) covering such matters relating receipt by the Administrative Agent of customary opinions of counsel to the Loan Documents as Parties with respect to this Agreement, the Administrative Agent or Amended Credit Agreement, the Incremental Lenders shall reasonably requesttransactions contemplated thereby, and Terex hereby requests such counsel to deliver such opinion.the Transactions;
(d) The receipt by the Administrative Agent and the Incremental Lenders shall of a certificate of a Responsible Officer of each have received Loan Party, certifying that (i) a copy no Event of Default has occurred and is continuing under Section 9.01(a), (f) or (g) of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of StateExisting Credit Agreement; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Merger Agreement and the borrowings hereunder, and that such resolutions have there has not been modified, rescinded or amended and are a Radiant Material Adverse Effect (as defined in the Merger Agreement); (iii) (x) the Merger Agreement is in full force and effect, (Cy) that the certificate of incorporation of Terex has not been amended since the date closing of the last amendment thereto shown Transactions shall have occurred on the certificate of good standing furnished pursuant to clause (i) aboveTenth Amendment Effective Date on the terms set forth in the Merger Agreement and in compliance with applicable Law and regulatory approvals, and (z) no provision of the Merger Agreement shall have been waived, amended, supplemented, or otherwise modified in a manner adverse to the Lenders in any material respect without the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (for purposes of the foregoing condition, it is hereby understood and agreed that (A) any reduction in the Exchange Ratio (as defined in the Merger Agreement) in connection with the Merger Agreement, other than a reduction in the Exchange Ratio in accordance with the terms of the Merger Agreement (including, without limitation, working capital adjustments), shall be deemed to be materially adverse to the interests of the Lenders (in their capacities as such), (B) any increase in the Exchange Ratio in connection with the Merger Agreement shall not be materially adverse to the interests of the Lenders (in their capacities as such) so long as such increase is funded with common equity contributions, (C) any Exchange Ratio adjustment expressly contemplated by the Merger Agreement shall not be considered an amendment, waiver or other modification of the Merger Agreement, (D) any change to or consent granted under the definition of Radiant Material Adverse Effect (as defined in the Merger Agreement) shall be deemed to be materially adverse to the incumbency Lenders, (E) any action taken by the Super Parent or any of its Subsidiaries (including, without limitation, Radiant Merger Sub Ltd.) at the request of the Parent that would constitute an exception to Radiant Material Adverse Effect (as defined in the Merger Agreement) shall be deemed to be materially adverse to the interests of the Lenders (in their capacities as such), and specimen signature (F) any action taken by the Parent or any of each officer executing this its Subsidiaries (including, without limitation, the Borrowers) at the request of the Super Parent or Radiant Merger Sub Ltd. that would constitute an exception to Radiant Material Adverse Effect (as defined in the Merger Agreement) shall be deemed to be materially adverse to the interests of the Lenders (in their capacities as such)); (iv) the Specified Representations (as defined in the Debt Commitment Letter) shall be true and correct in all material respects (or in all respects to the extent qualified by materiality) as of the Tenth Amendment Effective Date; and (v) the Specified Merger Agreement Representations are accurate in all respects to the extent that the Parent has the right to terminate its obligations under the Merger Agreement or not consummate the Transactions as a result of a breach of such representations in the Merger Agreement (for purposes hereof, “Specified Merger Agreement Representations” means such of the representations made by or on behalf of Terex; the Super Parent and its Subsidiaries (iiiincluding, without limitation, Radiant Merger Sub Ltd.) a certificate of another officer in the Merger Agreement as are material to the incumbency and specimen signature interests of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.Lenders);
Appears in 1 contract
Conditions Precedent. The obligation obligations of the Incremental Lenders Lender to make Incremental the Term Loans Loan hereunder shall be subject to satisfaction not become effective until the date on which each of the following conditions precedentis satisfied or waived:
(a) On The Lender’s receipt of each of the Incremental Term Loan following in form and substance satisfactory to the Lender:
(i) this Agreement duly executed and delivered on behalf of the Borrower and the Lender;
(ii) certificates of the Secretary or Assistant Secretary of the Borrower, dated the Closing Date, each (x) certifying that its Organization Documents (as defined in the Incorporated Agreement) have not been amended or modified since June 30, 2011, or if so setting forth same and (y) attaching:
(A) a borrowing resolution or other evidence of the conditions Borrower’s authority to borrow the Term Loan and enter into this Agreement, and
(B) a certificate of incumbency evidencing the identity, authority and capacity of each Person authorized to act in connection with the Loan Documents,
(iii) a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel to the Borrower, in form and substance acceptable to the Lender and addressed to the Lender, as to such matters concerning the Borrower and this Agreement and the other Loan Documents as the Lender may reasonably request;
(iv) a good standing certificate issued by the Secretary of State (or analogous officer) of the jurisdiction of its incorporation or formation;
(v) a notice of borrowing as required by Paragraph 1(b) hereof;
(vi) evidence satisfactory to it of the release of the Subsidiary Guaranty under the Short Term Loan Facility with Bank of America, N.A. and that none of the other Short Term Loan Facilities is guaranteed by any person; and
(vii) such other documents and certificates as the Lender may reasonably request. Parexel International Corporation January 22, 2013
(b) The representations and warranties of the Borrower set forth in Paragraph 3(b) (including those incorporated by reference from the Incorporated Agreement) are true and correct on and as of the Closing Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct at such earlier date.
(c) At the time of and immediately after giving effect to the making of the Term Loan on the Closing Date, no Default shall have occurred and be continuing.
(d) The Lender shall have received from the Borrower payment of all fees and expenses (including to the extent invoiced, reasonable attorneys’ fees and expenses) required to be paid to the Lender on or before the Closing Date. The borrowing of the Term Loan shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terexthis Section.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall become effective on the Effective Date, provided, however, that the effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be this Amendment is subject to the satisfaction of each of the following conditions precedent:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) 3.1 The Administrative Agent shall have received:
a. Counterparts of this Amendment duly executed by the Borrower, on behalf of itself the Administrative Agent and the Incremental LendersBanks.
b. For each Bank, a the favorable written opinion of (i) Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, General Counsel of Terex, satisfactory counsel to the Administrative Agent Borrower, and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed General Counsel to the Administrative Agent and the Incremental Lenders and (iii) covering Borrower; provided, either such matters relating opinion shall include a legal opinion to the Loan Documents effect that the Borrower has obtained all necessary approvals under PUHCA in connection with its obligations under the Credit Documents, as amended hereby, and such other related matters as the Administrative Agent or the Incremental Lenders shall may reasonably request, and Terex hereby requests such counsel to deliver such opinion.;
c. A certificate of the secretary of Borrower certifying (da) The Administrative Agent and the Incremental Lenders shall each that there have received (i) a copy of been no changes in the certificate of incorporationincorporation or bylaws of Borrower since May 29, including all amendments thereto2014 (or if changes have occurred, of Terex, certified as of a recent date by attaching the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a current certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date incorporation and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowbylaws), (Bb) that attached thereto is a true and complete copy resolutions of resolutions duly adopted by the board its Board of directors of Terex Directors authorizing the execution, delivery of the Amendment and performance of this Agreement the Amendment and the borrowings hereunderCredit Agreement, and that such resolutions have not been modified, rescinded or as amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) abovehereby, and (Dc) to the extent modified from the incumbency and specimen signatures delivered to the Administrative Agent as to of May 29, 2014, the incumbency and specimen signature of each officer executing of its officers authorized to sign this Agreement on behalf of TerexAmendment;
d. A certificate stating that the conditions precedent set forth in Article II hereof and this Article III have been satisfied; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such and
e. Such other documents and information as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) 3.2 All legal matters incident to the execution and delivery of this Amendment shall be satisfactory to the Banks.
3.3 The Incremental Lenders Borrower shall have received evidence reasonably satisfactory paid to them that (i) the bonds issued by Fantuzzi Finance S.A. Administrative Agent for the benefit of each Bank the applicable fees for providing their respective Commitments under the Credit Agreement, as amended hereby.
3.4 There has been no material adverse change in the business, assets, operations, performance or condition, financial or otherwise, of the Borrower and guaranteed by Reggiane Cranes & Plants S.pits subsidiaries taken as a whole, since the last day of the most recently audited financial year of the Borrower.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall be effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to date hereof (the “Amendment Effective Date”) upon satisfaction of the following conditions precedentconditions:
(ai) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative The Collateral Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and this Amendment, duly executed by a Financial Officer of Terexthe parties hereto.
(bii) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent Company shall have received, on behalf of itself executed and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory delivered to the Administrative Agent and the Incremental Lenders, (i) dated CSI Prodigy Holdco, a Consenting Investor, an Amended and Restated Note in the Incremental Term Loan Closing Dateform attached as Exhibit B-1 hereto, (ii) addressed to CSI Prodigy Co-Investment LP, a Consenting Investor, an Amended and Restated Note in the Administrative Agent and the Incremental Lenders and form attached as Exhibit B-2 hereto, (iii) covering CSI PRTA Co-Investment LP, a Consenting Investor, an Amended and Restated Note in the form attached as Exhibit B-3 hereto and (iv) Generation IM Climate Solutions II, L.P., which, on the date hereof is not a Consenting Investor, an Amended and Restated Note in the form attached as Exhibit B-4 hereto, in each case evidencing the Company’s Debt to such matters relating to Investor in the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionamount set forth therein.
(diii) Each of the representations and warranties of the Company contained in Section 4 shall be true and complete as of the Amendment Effective Date.
(iv) Immediately before giving effect to this Amendment, other than the Anticipated Default and the Cross-Default, no Default or Event of Default shall have occurred and be continuing and on the Amendment Effective Date, immediately after giving effect to this Amendment and the Senior Loan Waiver no Default or Event of Default shall have occurred and be continuing.
(v) The Administrative Agent and the Incremental Lenders Company shall have delivered to each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and Investor a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary signed on its behalf by its President, Chief Executive Officer or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and Chief Financial Officer certifying that (A) that attached thereto is a true the conditions specified in clauses (iii) and complete copy (iv) of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date this Section 5 have been fulfilled and at all times since a date prior to the date of the resolutions described in clause (B) below, the Obligors are Solvent on a consolidated basis after giving effect to this Amendment.
(Bvi) that attached thereto is a true All necessary consents of shareholders and complete copy of resolutions duly adopted by the board of directors of Terex authorizing other third parties with respect to the execution, delivery and performance of this Agreement Amendment shall have been obtained.
(vii) The Cowen Investors shall have received a certificate of a duly authorized officer of each Obligor, certifying (A) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (B) that an attached copy of resolutions authorizing execution and delivery of the borrowings hereunderFinancing Documents to which it is a party is true and complete, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to the Financing Documents; and (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency title, name and specimen signature of each officer executing Person authorized to sign the applicable Financing Documents. The Investors may conclusively rely on this Agreement on behalf of Terex; (iii) a certificate of another officer as to until they are otherwise notified by the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestapplicable Obligor in writing.
(eviii) The Incremental Lenders Collateral Agent shall have received evidence reasonably satisfactory to them that (i) the bonds good standing certificates for each Obligor, issued by Fantuzzi Finance S.A. the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and guaranteed by Reggiane Cranes & Plants S.psuch Obligor’s headquarters or principal place of business, each dated as of a date no earlier than thirty (30) days prior to the date hereof.A.
(ix) The Collateral Agent shall have been discharged in full and no amounts payable in respect received a fully executed copy of such bonds remain outstanding and the Senior Loan Waiver.
(iix) any guarantees relating to such bonds The Company shall have been irrevocably cancelled paid all fees and no amounts payable in respect of such guarantees remain outstandingexpenses to be paid to the Cowen Investors and the Collateral Agent incurred through the Amendment Effective Date to the extent invoiced at least one Business Day prior to the date hereof.
Appears in 1 contract
Sources: Secured Convertible Promissory Notes and Note Purchase Agreement (Proterra Inc)
Conditions Precedent. The obligation of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedent:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received Lead Arranger to enter into this Agreement, and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a certificate Letter of Credit is subject to that effect dated such the satisfaction of the following conditions precedent before or concurrently with the date and executed by a Financial Officer of Terex.hereof (the “Effective Date”):
(ba) The Administrative Agent and the Incremental Lenders Lead Arranger shall each have received a duly completed Borrowing Request on or before the Effective Date the following, each dated such day (unless otherwise specified), in accordance with form and substance satisfactory to the provisions Administrative Agent and the Lead Arranger (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.03 of the Credit Agreement2.16.
(cii) The An amended and restated security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent shall may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) the Intellectual Property Security Agreement duly executed by each Loan Party,
(D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the security interest created thereunder,
(E) evidence of the insurance required by the terms of the Security Agreement, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements).
(iii) Certified copies of the resolutions of the Board of Directors of each Loan Party approving each Loan Document to which it is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to each Loan Document to which it is or is to be a party and the transactions contemplated thereby.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying that (1) such Loan Party has paid all franchise taxes to the date of such certificate (except to the extent such Loan Party will provide evidence that all franchise taxes have receivedbeen paid after the Effective Date pursuant to Section 5.01(r)) and (2) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(v) A certificate of each Loan Party, signed on behalf of itself such Loan Party by its Chief Financial Officer or its Chief Executive Officer and its Secretary or any Assistant Secretary, dated as of the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) amendments to the charter of such Loan Party, if any, since the Initial Extension of Credit Date (and providing certified copies of any such amendments), (B) amendments to the bylaws of such Loan Party, if any, since the Initial Extension of Credit Date (providing certified copies of any such amendments), (C) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the Incremental Lendersabsence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date and (E) the absence of any event occurring and continuing, on or after the Initial Extension of Credit Date, that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(vii) Certificates, in form and substance satisfactory to the Lender Parties, attesting to the Solvency of each Loan Party from its Chief Financial Officer or its Chief Executive Officer.
(viii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated June 30, 2005, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Effective Date), and a budget (which shall include balance sheets, income statements and cash flow statements) on a quarterly basis for the first year following the day of the Effective Date and on an annual basis for each year thereafter until the Termination Date.
(ix) Evidence of insurance naming the Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance.
(x) A Notice of Borrowing or Letter of Credit Request.
(xi) A favorable written opinion of Z▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Brandeis, General Counsel of TerexLLP, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to special counsel for the Loan Documents as Parties, in substantially the Administrative Agent or the Incremental Lenders shall reasonably request, form of Exhibit F hereto and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents matters as the Incremental Lenders or any Lender Party through the Administrative Agent may reasonably request.
(xii) Departing Lender Consents, substantially in the form of Exhibit H hereto, from each of KeyBank National Association and National City Bank of the Midwest.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interests in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.
(c) [Intentionally Left Blank]
(d) There shall have occurred no Material Adverse Change since June 30, 2005.
(e) The Incremental Lenders There shall have received evidence reasonably satisfactory to them exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any Governmental Authority that (i) is reasonably likely to have Material Adverse Effect other than the bonds issued matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by Fantuzzi Finance S.A. this Agreement, and guaranteed by Reggiane Cranes & Plants S.p.A. there shall have been discharged no adverse change in full the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(f) All Governmental Authorizations and no amounts payable third party consents and approvals necessary in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds connection with the transactions contemplated by this Agreement shall have been irrevocably cancelled obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the transactions contemplated by this Agreement shall have expired without any action being taken by any competent authority, and no amounts payable law or regulation shall be applicable in respect the judgment of the Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by this Agreement or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(g) The Lender Parties shall have completed a due diligence investigation of the Loan Parties, the Borrower and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties; without limiting the generality of the foregoing, the Lender Parties shall have been given such guarantees remain outstandingaccess to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested.
(h) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all reasonable accrued expenses of the Administrative Agent (including the reasonable accrued fees and expenses of counsel to the Administrative Agent).
Appears in 1 contract
Sources: Credit Agreement (Grubb & Ellis Co)
Conditions Precedent. The obligation This Agreement and the amendments set forth in Section 1 of this Agreement shall become effective on the first date (the “Amendment No. 3 Effective Date”) when, and only when, each of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following applicable conditions precedent:set forth below have been satisfied (or waived):
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the The Administrative Agent and the Incremental Lenders (or its counsel) shall have received counterparts of this Agreement that, when taken together, bear the signatures of the Borrower, Holdings, the Administrative Agent, the Collateral Agent and each Term C Lender (whether pursuant to the execution and delivery of a certificate to that effect dated such date Consent, the Joinder or counterparts of this Agreement). The Consents and the Joinder shall have been duly executed by a Financial Officer each existing Term Lender or Additional Term C Lender, as applicable, such that upon such execution by all such Lenders, the aggregate principal amount of Terexthe Converted Term B Loans, the Increased Term C Loans and the Additional Term C Loans is equal to $2,277,500,000.00.
(b) The Administrative Agent and the Incremental Lenders (or its counsel) shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 certificate of the Credit Agreement.
(c) The Administrative Agent shall have receivedBorrower and Holdings dated as of the Amendment No. 3 Effective Date signed by a Responsible Officer of the Borrower and Holdings, on behalf of itself and the Incremental Lendersrespectively, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, certifying (i) dated that the Incremental Term Loan Closing DateOrganization Documents, including amendments thereto, of the Borrower and Holdings, as applicable, either (x) have not been amended since the Amendment No. 2 Effective Date or (y) are attached as an exhibit to such certificate, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iiix) covering such matters relating to the Loan Documents as the Administrative Agent copies of resolutions of its Board of Directors (or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(dsimilar governing body) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporationBorrower and Holdings, including all amendments theretoas applicable, of Terex, certified as of a recent date by approving the Secretary of State of the State of Delaware, execution and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunderconsummation of the transactions contemplated hereby or (y) to the extent the resolutions delivered on the Closing Date approve such matters, and that such the resolutions have not been modifieddelivered on the Closing Date authorize the transactions contemplated hereby, rescinded or amended and are remain in full force and effect, (C) that the certificate of incorporation of Terex has effect and have not been amended or otherwise modified since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause adoption thereof, (iiii) above, and (Dx) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of Terex; such Loan Party or (iiiy) a certificate of another officer as to certification that the incumbency and specimen signature of each officer of each Loan Party delivered to the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; Administrative Agent as of May 13, 2016 has not been amended since such date and (iv) such other documents as to the Incremental Lenders or matters set forth in Section 3(f) and (g) below.
(c) The Borrower shall have paid to the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory and to them that (i) Deutsche Bank Securities Inc., as sole lead arranger and sole bookrunner in connection with this Agreement, all fees and expenses due to be paid on the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.Amendment No. 3
Appears in 1 contract
Conditions Precedent. The obligation of the Incremental Lenders Lender to make Incremental Term Loans available hereunder shall be subject to satisfaction occur on the date (the “Effective Date”) on or after November 12, 2004 that the Lender shall have received each of the following conditions precedentfollowing, in form, and substance satisfactory to the Lender and its counsel:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and Note duly executed by a Financial Officer of Terex.the Borrower;
(b) The Administrative Agent the Security and Pledge Agreement duly executed by the Incremental Lenders shall each have received a duly completed Borrowing Request Borrower together with such financing statements executed by the Borrower which in accordance with the provisions of Section 2.03 opinion of the Credit Lender are desirable to perfect the liens and security interest created hereby and by the Security and Pledge Agreement.;
(c) The Administrative Agent shall have receivedthe stock certificates evidencing the Pledged Interests, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.accompanied by undated stock powers duly executed in blank;
(d) The Administrative Agent evidence that either the Interim Order or the Final Order, as the case may be, shall have been entered by the Bankruptcy Court approving the Commitment (or such lesser amount as shall be acceptable to the Lender in its sole discretion), and the Incremental Lenders such order shall each be in full force and effect and shall not have received been reversed, stayed, modified or amended;
(ie) a copy of the certificate of incorporationcharter, including all amendments theretoas amended and in effect, of Terex, the Borrower certified as of a recent date by the Secretary of State of the State state of Delawareits incorporation, and a certificate from such Secretary of State dated as of recent date as to the good standing of Terex as of a recent date from such Secretary of State; and charter documents filed by the Borrower;
(iif) a certificate from the Secretary of the Secretary or Assistant Secretary of Terex Borrower, dated the Incremental Term Loan Closing Date and Effective Date, certifying (Aa) that the attached thereto is a are true and complete copy copies of the by-laws of Terex the Borrower as amended and in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) beloweffect, (Bb) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors of Terex the Borrower authorizing the execution, delivery and performance of this Agreement and the borrowings other Facility Documents to which the Borrower is a party and the extensions of credit hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (Cc) that the certificate charter of incorporation of Terex the Borrower has not been amended since the date of the last amendment certification thereto shown on the certificate of good standing furnished pursuant to clause (ie) above, and (Dd) as to the incumbency and specimen signature of each officer of the Borrower executing this Agreement on behalf of Terex; the Facility Documents;
(iiig) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary of the Borrower;
(h) a certificate of a duly authorized officer of the Borrower, dated the Effective Date, stating that (a) the representations and warranties in Article 7 of this Agreement and in the other Facility Documents are true and correct on such date as though made on and as of such date, (b) no event has occurred and is continuing which constitutes a Default or Assistant Secretary executing the certificate pursuant to (ii) above; an Event of Default hereunder and (ivc) prior to the Effective Date no material adverse change in the assets, business, operations or financial condition of the Borrower has occurred or become known since the Petition Date, except as disclosed in writing by the Borrower to the Lender prior to the Effective Date;
(i) the Liens and security interests in favor of the Lender granted pursuant hereto and the Security and Pledge Agreement shall be valid and perfected first priority Liens prior (except for Permitted Liens to which such Liens and security interests are subordinate and junior) to all other Liens in or on the Collateral intended to be subject thereto, subject to the Carve-Out Expenses;
(j) evidence that all fees, retainers and expenses required by this Agreement to be paid on or before the Effective Date shall have been paid in full (or shall have been authorized by the Interim Order, or the Final Order, as the case may be);
(k) the Lender shall otherwise be satisfied in all material respects (in its sole discretion) with the results of its business, operational and legal due diligence in respect of the Borrower; and
(l) such other approvals, opinions or documents as the Incremental Lenders or the Administrative Agent Lender may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit Agreement (IGIA, Inc.)
Conditions Precedent. The obligation of This Amendment shall become effective upon the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction date that the last of the following conditions precedentevents shall have occurred:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders Lender shall have received a certificate to that effect dated such date and this Amendment, duly executed by a Financial Officer of Terexthe Borrower.
(b) The Administrative Agent No Default shall have occurred and be continuing which constitutes an Event of Default or would constitute an Event of Default upon the Incremental Lenders giving of notice or lapse of time or both, and no event or development which has had or is reasonably likely to have a Material Adverse Effect shall have occurred, in each have received a duly completed Borrowing Request in accordance with case since the provisions date of Section 2.03 delivery to the Lender of the Credit AgreementBorrower's most recent financial statement.
(c) The Administrative Agent the Lender shall have receivedreceived (i) an officer's certificate, on behalf executed by the chief financial officer or chief executive officer of itself the Borrower, confirming the truth and accuracy of the Incremental Lendersrepresentations and warranties contained in Section Two hereof and contained in Section Three (b) hereof, and (ii) a favorable written opinion secretary's certificate, executed by the corporate secretary of the Borrower, in form reasonably satisfactory to the Lender.
(d) the Lender shall have received a letter agreement from each of ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel duly executed by each of Terexthem, satisfactory to each in the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinionform of Exhibit A of this Agreement.
(de) The Administrative Agent the Lender shall have received a promissory note, duly executed by the Borrower, in the form of Exhibit B to this Agreement.
(f) the Lender shall have received and reviewed to its satisfaction the Incremental Lenders results of a tax, lien and judgment search report, as of a recent date, conducted against the Borrower and its properties.
(g) the Lender shall each have received (i) a copy of financing statements on form UCC-1, to be filed against the certificate of incorporationBorrower, including as debtor, suitable for recordation in all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, appropriate jurisdictions and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate financing statements on form UCC-3, to reflect the assignment to the Lender by Banc of America Commercial Finance Corporation of its security interests in the assets and properties of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as Borrower, suitable for recordation in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestappropriate jurisdictions.
(eh) The Incremental Lenders the Lender shall have received evidence reasonably satisfactory an amendment, duly executed by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, to them that the Subordination Agreement dated as of August 31, 1999 executed by him in favor of Banc of America Commercial Financial Corporation, such amendment to be in the form of Exhibit C to this Agreement.
(i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. Lender shall have been discharged in full received a Certificate of Property Insurance evidencing the effectiveness of casualty insurance on the Borrower's assets and no amounts properties, together with a loss payable in endorsement form naming the Lender as loss payee with respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingthereto.
Appears in 1 contract
Conditions Precedent. The obligation effectiveness of this Amendment is subject to (i) the truth and accuracy of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to representations set forth in Section 3 below and (ii) satisfaction of each of the following conditions precedent:
(a) On the Incremental Term Loan Closing Date, first date on which each of the conditions set forth in paragraphs pursuant to the foregoing clauses (bi) and (cii) of Section 4.01 of the Credit Agreement shall be have been satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.“First Amendment Effective Date”):
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(ca) The Administrative Agent shall have receivedreceived each of the following, on behalf each of itself which shall be in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance satisfactory to the Administrative Agent and the Incremental Lenders, Agent:
(i) dated a counterpart of this Amendment duly executed by (A) the Incremental Term Loan Closing DateBorrower, (iiB) addressed to the Administrative Agent and (C) (1) to evidence its approval of this Amendment (including, without limitation, the Incremental General Amendments but excluding the Requisite Lender Amendments), each Lender and (2) to evidence their respective approvals of the Requisite Lender Amendments, Consenting Requisite Lenders constituting Requisite Lenders;
(ii) a certificate of the Borrower’s chief executive officer, chief legal officer, chief financial officer or chief accounting officer certifying as of the date hereof, after giving effect to this Amendment and the other transactions contemplated hereby, that (A) no Default or Event of Default shall be in existence, and (B) the representations and warranties made or deemed made by the Borrower in the Amended Credit Agreement and any other Loan Document shall be true and correct in all respects on the date hereof except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all respects on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Credit Agreement;
(iii) covering such matters relating to a certificate of the Loan Documents as Secretary or Assistant Secretary (or other individual performing similar functions) on behalf of the Administrative Agent or Borrower dated the Incremental Lenders shall reasonably requestFirst Amendment Effective Date, certifying (A) that attached thereto are true, correct and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received complete copies of (i) a copy the declaration of trust or other comparable organizational instrument, as applicable, of the certificate of incorporation, including all amendments thereto, of Terex, Borrower certified as of a recent date by the Secretary of State of the State state of Delawareits organization and (ii) the by-laws or other comparable governing document, as applicable, of the Borrower, (B) that attached thereto is a true, correct and complete copy of a certificate as to the good standing of Terex the Borrower as of a recent date from such the Secretary of State; State (iior other applicable Governmental Authority) a certificate of the Secretary or Assistant Secretary its jurisdiction of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) beloworganization, (BC) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or board of Terex members or equivalent governing body) of the Borrower authorizing the execution, delivery and performance of this Agreement Amendment and the borrowings hereunderother Loan Documents entered into in connection herewith, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate effect as of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) abovesuch certificate, and (D) as to the signature and incumbency and specimen signature certificates of each officer its officers executing this Agreement Amendment or any of the other Loan Documents or any other document delivered in connection herewith on behalf of Terex; the Borrower (iii) together with a certificate of another officer or authorized person as to the incumbency and specimen signature of the Secretary officer or Assistant Secretary authorized person executing the certificate pursuant to this clause (iiiii)); provided that such certificate can certify that there have been no changes to such documents or items described in the foregoing clauses (A) above; and or (D) since such documents or items were last delivered to the Administrative Agent on the Effective Date;
(iv) evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders in connection with this Amendment have been paid;
(A) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws and regulations, including without limitation, the Patriot Act, and (B) if requested by the Administrative Agent or any Lender, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower, in each case, at least five (5) Business Days prior to the First Amendment Effective Date; and
(vi) such other documents documents, agreements, instruments, certificates or other confirmations as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder amendments set forth in Section 2 above shall be subject to conditioned on the satisfaction not later than three Business Days after the date hereof of the following conditions precedent:precedent (such date upon which all such conditions have been satisfied is referred to herein as the (the “Second Amendment Effective Date”)):
(a) On this Amendment shall have been executed by the Incremental Term Loan Closing DateParent Borrower and the Administrative Agent;
(b) each Lender under the Credit Agreement shall have consented to this Amendment by executing a Lender Addendum in the form attached hereto as Attachment 2 , and counterparts thereof as so executed shall have been delivered to the Administrative Agent;
(c) upon and immediately after giving effect to this Amendment, (i) all of the representations and warranties set forth in Section 4 below will be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) as of such date, except to the extent that such representations and warranties expressly relate to an earlier specified date or period, in which case such representations and warranties shall have been true and correct in all material respects as of the date when made or for the respective period, as the case may be, and (ii) no Default or Event of Default shall exist;
(d) the Parent Borrower shall have paid all reasonable legal fees and out-of-pocket expenses of the Administrative Agent in connection with the negotiation and execution of this Amendment, and any other documents being executed or delivered in connection therewith;
(e) the Parent Borrower shall have paid all reasonable legal fees and out-of-pocket expenses of Credit Suisse Securities (USA) LLC, in connection with arranging the Amendment;
(f) the Parent Borrower shall have paid all other fees owing to the Second Amendment Lead Arrangers in connection with arranging the Amendment, as separately agreed by the Parent Borrower and each of the Second Amendment Lead Arrangers;
(g) the Parent Borrower shall have paid to Administrative Agent for the account of each Lender that has executed and delivered to the Administrative Agent a Lender Addendum on or prior to 12:00 p.m. (Noon) Eastern Time on December 6, 2013 (the “Consent Deadline”) an amendment fee in the amount of 1.50% of the principal amount of such Lender’s outstanding Loans and Commitments as of the date of the Consent Deadline (and without giving effect to any assignments to such Lender pursuant to Section 11.12(f) or the Specified Prepayment), which amendment fee, for the avoidance of doubt, will not be payable unless and until the other conditions set forth in paragraphs this Section 3 have been met, except for the payment of fees pursuant to this Section 3(f);
(bh) the Parent Borrower shall have made the Specified Prepayment on the Second Amendment Effective Date;
(i) the Guarantors shall have executed and delivered the reaffirmation of the Guaranty attached hereto as Attachment 1;
(cj) the Administrative Agent shall have received certified copies of the resolutions of the Board of Directors (or similar governing body) of Section 4.01 the Parent Borrower evidencing approval of this Amendment;
(k) the Administrative Agent shall have received executed customary opinions of the Credit Agreement shall be satisfied, and each of Parent Borrower’s counsel addressed to the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect and dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 as of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself Second Amendment Effective Date in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance reasonably satisfactory to the Administrative Agent and the Incremental Lenders, Second Amendment Lead Arrangers; and
(il) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy certified copies of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State limited liability company agreement and other applicable governing documents of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; Parent Borrower (ii) or a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy an Authorized Officer of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and Parent Borrower stating that such resolutions documents have not been modified, rescinded or amended modified since the Closing Date and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of and a good standing furnished pursuant to clause (i) abovecertificate from the Secretary of State of Delaware, and (D) dated as of a recent date, certifying as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature good standing of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestParent Borrower.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be this Fourth -------------------- Amendment is hereby subject to the satisfaction on a date to be mutually agreed upon, but not later than October 26, 1998 (the "Closing Date"), of the following conditions precedentin a manner acceptable to the Bank and its counsel:
(a) On the Incremental Term Loan execution and delivery to the Bank by the Borrower of this Fourth Amendment;
(b) the execution and delivery to the Bank of a Revolving Note for the account of the Bank in the amount of its Commitment in exchange for the promissory note issued under the Existing Credit Agreement;
(c) receipt by the Bank of a certificate of the Secretary or Assistant Secretary of the Borrower, dated the Closing Date, each attesting on behalf of the conditions set forth Borrower to all corporate action taken by the Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Fourth Amendment, the Revolving Note and each other document to be delivered pursuant to this Fourth Amendment;
(d) receipt by the Bank of a certificate of a Senior Officer of the Borrower, dated the Closing Date, stating that:
(i) the representations and warranties contained in paragraphs (b) and (c) of Section 4.01 Article 5 of the Credit Agreement shall be satisfied, are correct on and each as of the Administrative Agent date of such certificate as though made on and as of such date (or, if such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(ii) no Event of Default or Default has occurred and is continuing or would result from the Incremental Lenders shall have received signing of the Fourth Amendment to the Credit Agreement or the transactions contemplated thereby; and
(iii) there has been no material adverse change in the financial condition, operations, Properties, business or business prospects of the Borrower and its Subsidiaries, since the date of the last audited financial statements furnished to the Bank;
(e) receipt by the Bank of a certificate to that effect dated such date and executed by of a Financial Senior Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders Borrower, dated the Closing Date, substantially in the form of Exhibit B to ------------ Fourth Amendment, which certificate shall each have received a duly completed Borrowing Request include information required to ---------------- establish that the Borrower will be in accordance compliance with the provisions of Section 2.03 of covenants set forth in the Credit Agreement., after giving effect to the transactions contemplated herein;
(cf) The Administrative Agent shall have received, on behalf receipt by the Bank of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified good standing for the Borrower as of a recent date by the Secretary of State of its jurisdiction of incorporation and each state where the Borrower, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a material adverse effect on the financial condition, operations, Properties, business or, as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, taken as a whole;
(g) receipt by the Bank of a certificate of good standing for USBENEFITS as of a recent date by the Secretary of State of Delawareits jurisdiction of incorporation and, and if different, its principal place of business;
(h) receipt by the Bank of a certificate as to the good standing of Terex or similar instrument as of a recent date from such Secretary the appropriate tax authority in the State of State; California and Delaware as to the payment by the Borrower of all taxes owed;
(iii) receipt by the Bank of a certificate of authority as of a recent date from the Secretary or Assistant Secretary Insurance Commissioner of Terex Massachusetts certifying that USF RE is duly licensed and in good standing with such Insurance Commissioner;
(j) receipt by the Bank of a favorable opinion of ▇.▇. ▇▇▇▇, Professional Law Corporation, California counsel to the Borrower, dated the Incremental Term Loan Closing Date Date, in substantially the form set forth in Exhibit C to Fourth Amendment ----------------------------- hereto;
(k) receipt by the Bank of a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Massachusetts insurance counsel to the Borrower, dated the Closing Date, in substantially the form set forth in Exhibit D to Fourth Amendment hereto; -----------------------------
(l) receipt by the Bank of an acknowledgment and certifying ratification of the Pledge Agreement, dated the Closing Date, in substantially the form set forth in Exhibit E to Fourth Amendment hereto; -----------------------------
(Am) that attached thereto is receipt by the Bank of a true and complete copy of the by-laws of Terex as each consent, license, approval and notice required in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing connection with the execution, delivery delivery, performance, validity and performance enforceability of this Agreement Fourth Amendment, the Revolving Note and each other document and instrument required to be delivered in connection herewith, if any;
(n) the borrowings hereunderprovision of all information, documents, certificates and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate opinions of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as counsel relating to the incumbency Borrower and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents its Subsidiaries, as the Incremental Lenders or the Administrative Agent Bank may reasonably request., all in form and substance satisfactory to the Bank and its special counsel;
(eo) The Incremental Lenders shall have received evidence reasonably satisfactory payment to them that the Bank of an up-front fee of $151,125.00; and
(ip) payment to Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the bonds issued by Fantuzzi Finance S.A. Bank, of its legal fees and guaranteed by Reggiane Cranes & Plants S.pdisbursements.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit Agreement (Centris Group Inc)
Conditions Precedent. The obligation effectiveness of this Agreement is subject to the receipt by the Administrative Agent of the Incremental Lenders following, each in form and substance acceptable to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentAdministrative Agent:
(a) On this Agreement, ▇▇▇▇ executed and delivered by the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.parties hereto;
(b) The Administrative Agent a Third Amended and Restated Class A Fee Letter, duly executed and delivered by the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.parties thereto;
(c) The Administrative Agent shall have received, on behalf a certificate of itself and a Responsible Officer of the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, Borrower certifying (i) dated as to the Incremental Term Loan Closing DateBorrower’s Constituent Documents, (ii) addressed as to resolutions or other action required under its Constituent Documents to approve the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date entering into by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance Borrower of this Agreement and the borrowings hereunder, other Facility Documents to which it is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effectthe transactions contemplated thereby, (Ciii) that its representations and warranties set forth in the certificate Facility Documents to which it is a party are true and correct in all material respects as of incorporation of Terex has not been amended since the date hereof (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of the last amendment thereto shown on the certificate such earlier date) (except for representations and warranties already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects), (iv) that no Unmatured Event of good standing furnished pursuant to clause (i) aboveDefault, Event of Default or Accelerated Amortization Event has occurred and is continuing, and (Dv) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(iiid) a certificate of another officer as with respect to the incumbency Borrower, Holdings and specimen signature of the Permitted Holder, a good standing certificate issued by the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents of State of Delaware as the Incremental Lenders or the Administrative Agent may reasonably request.of a recent date;
(e) The Incremental legal opinions (addressed to the Administrative Agent, the Lenders and their successors and assignees) of counsel to the Borrower reasonably acceptable to the Administrative Agent, covering such matters as the Administrative Agent, the Lenders and their respective counsel shall have received reasonably request, including but not limited to corporate and enforceability matters; and
(f) evidence reasonably satisfactory to them that (i) all fees to be received by the bonds issued by Fantuzzi Finance S.A. Administrative Agent and guaranteed by Reggiane Cranes & Plants S.p.A. shall the Lender on or prior to the date hereof pursuant to the Class A Fee Letter or otherwise have been discharged received in full immediately available funds by the Administrative Agent and no amounts payable in respect of such bonds remain outstanding each Lender, as applicable and (ii) any guarantees relating the accrued reasonable and documented fees and expenses of counsel to such bonds the Administrative Agent and the Initial Class A Lender, in connection with this Amendment and the transactions contemplated hereby, shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingpaid by the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement and Servicing Agreement (BILL Holdings, Inc.)
Conditions Precedent. The obligation of This Eleventh Amendment shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction date (the “Amendment Effective Date”) on which each of the following conditions precedent:has been satisfied (or waived):
(a) On the Incremental Term Loan Closing DateAdministrative Agent shall have received duly executed and delivered counterparts of this Eleventh Amendment that, each when taken together, bear the signatures of the conditions Borrower, all Subsidiary Guarantors, the Administrative Agent, the Collateral Agent and the 2024-2 New Term Lenders;
(i) the representations and warranties set forth in paragraphs (b) and (c) of Section 4.01 Article III of the Amended Credit Agreement shall be satisfiedtrue and correct in all material respects on and as of the Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect) in the text thereof, and each (ii) at the time of and immediately after giving effect to this Eleventh Amendment on the Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing;
(c) the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect certificate, dated such date and as of the Amendment Effective Date, duly executed by a Financial Responsible Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance Borrower, confirming compliance with the provisions of conditions precedent set forth in Section 2.03 of the Credit Agreement.
(c4.1(b) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.above;
(d) The the Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex each Loan Party as of a recent date date, from such the Secretary of StateState of the state of its organization; (ii) a certificate of a Responsible Officer of each Loan Party dated as of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or other similar governing documents, as applicable, of Terex such Loan Party have not been amended or changed since the Fourth Amendment Effective Date, the March 31, 2020 Joinder Agreement or the Sixth Amendment Effective Date, as in effect on the Incremental Term Loan Closing Date and at all times since a date prior applicable, other than those changes attached to the date of the resolutions described in clause (B) belowsuch certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors or other similar governing body, as applicable, of Terex such Loan Party authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, Eleventh Amendment and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of Terex has such Loan Party have not been amended since the date of Fourth Amendment Effective Date, the last amendment thereto shown on March 31, 2020 Joinder Agreement or the Sixth Amendment Effective Date, as applicable, other than those changes attached to such certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement Eleventh Amendment or any other document delivered in connection herewith on behalf of Terexsuch Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary a Responsible Officer executing the certificate pursuant to immediately preceding clause (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.;
(e) The Incremental Lenders [reserved];
(f) the Administrative Agent shall have received evidence a solvency certificate, dated as of the Amendment Effective Date, from a Financial Officer of the Borrower, in form and substance reasonably satisfactory to them the Administrative Agent, supporting the conclusions that after giving effect to the transactions contemplated by this Eleventh Amendment, the Borrower will not be insolvent or be rendered insolvent by the Indebtedness incurred in connection therewith, or be left with unreasonably small capital with which to engage in its businesses, or have incurred debts beyond its ability to pay such debts as they mature;
(g) the Administrative Agent shall have received, on behalf of itself and the 2024-2 New Term Lenders, a written opinion of W▇▇▇▇ & Case LLP, counsel for the Borrower and certain other Subsidiary Guarantors (i) in form and substance reasonably satisfactory to the Administrative Agent, (ii) dated the Amendment Effective Date and (iii) addressed to the Administrative Agent, the Collateral Agent and the 2024-2 New Term Lenders;
(h) so long as reasonably requested by the Administrative Agent at least five Business Days prior to the Effective Date, the Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that has been reasonably requested by the Administrative Agent or any 2024-2 New Term Lender;
(i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. Administrative Agent shall have been discharged in full received a Borrowing Request with respect to the 2024-2 New Term Loans by 12:00pm at least one Business Day prior to the Amendment Effective Date; and
(j) the Lead Arrangers (as defined below) and no amounts payable in respect the Administrative Agent shall have received (i) to the extent invoiced, reimbursement or other payment of such bonds remain outstanding all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating thereto, and (ii) any guarantees relating fees or amounts otherwise agreed to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingwriting.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Conditions Precedent. The obligation effectiveness of this Agreement is subject to the receipt by the Administrative Agent of the Incremental Lenders following, each in form and substance acceptable to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentAdministrative Agent:
(a) On this Agreement, ▇▇▇▇ executed and delivered by the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.parties hereto;
(b) The Administrative Agent a Second Amended and Restated Class A Fee Letter, duly executed and delivered by the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.parties thereto;
(c) The Administrative Agent shall have received, on behalf a certificate of itself and a Responsible Officer of the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, Borrower certifying (i) dated as to the Incremental Term Loan Closing DateBorrower’s Constituent Documents, (ii) addressed as to resolutions or other action required under its Constituent Documents to approve the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date entering into by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance Borrower of this Agreement and the borrowings hereunder, other Facility Documents to which it is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effectthe transactions contemplated thereby, (Ciii) that its representations and warranties set forth in the certificate Facility Documents to which it is a party are true and correct in all material respects as of incorporation of Terex has not been amended since the date hereof (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of the last amendment thereto shown on the certificate such earlier date) (except for representations and warranties already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects), (iv) that no Unmatured Event of good standing furnished pursuant to clause (i) aboveDefault, Event of Default or Accelerated Amortization Event has occurred and is continuing, and (Dv) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(iiid) a certificate of another officer as with respect to the incumbency Borrower, Holdings and specimen signature of the Permitted Holder, a good standing certificate issued by the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents of State of Delaware as the Incremental Lenders or the Administrative Agent may reasonably request.of a recent date;
(e) The Incremental legal opinions (addressed to the Administrative Agent, the Lenders and their successors and assignees) of counsel to the Borrower reasonably acceptable to the Administrative Agent, covering such matters as the Administrative Agent, the Lenders and their respective counsel shall have received reasonably request, including but not limited to corporate and enforceability matters; and
(f) evidence reasonably satisfactory to them that (i) all fees to be received by the bonds issued by Fantuzzi Finance S.A. Administrative Agent and guaranteed by Reggiane Cranes & Plants S.p.A. shall the Lender on or prior to the date hereof pursuant to the Class A Fee Letter or otherwise have been discharged received in full immediately available funds by the Administrative Agent and no amounts payable in respect of such bonds remain outstanding each Lender, as applicable and (ii) any guarantees relating the accrued reasonable and documented fees and expenses of counsel to such bonds the Administrative Agent and the Initial Class A Lender, in connection with the transactions contemplated hereby, shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingpaid by the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (BILL Holdings, Inc.)
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be this Second Amendment is subject to satisfaction of the following conditions precedentfollowing:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) 6.1 The Administrative Agent shall have receivedreceived counterparts (in such number as may be requested by the Administrative Agent) of this Second Amendment from the Borrower, on behalf of itself each Guarantor and each Lender (including the Incremental LendersExiting Lender).
6.2 The Administrative Agent shall have received an Administrative Questionnaire from the New Lender.
6.3 In connection with the Eagle Ford Acquisition, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, the Administrative Agent shall have received from the relevant Loan Parties duly executed and notarized mortgages and/or mortgage supplements in form and substance reasonably satisfactory to the Administrative Agent and so that, after giving effect to the Incremental Lendersrecording of such mortgages and/or mortgage supplements, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent shall be reasonably satisfied that, after giving pro forma effect to the Eagle Ford Acquisition and the Incremental Lenders this Second Amendment, it has first priority, perfected Liens (subject only to Excepted Liens identified in clauses (a) to (d) and (iiif) covering such matters relating of the definition thereof, but subject to the Loan Documents provisos at the end of such definition) on at least 85% of the total value (as determined by the Administrative Agent or based on the Incremental Lenders shall reasonably request, present value of the Proved Reserves attributable thereto using a 9% discount rate) of the Oil and Terex hereby requests such counsel Gas Properties evaluated in the Reserve Report most recently delivered pursuant to deliver such opinionSection 8.12(a) and including the Eagle Ford Assets.
(d) 6.4 The Administrative Agent and the Incremental Lenders shall each have received (i) a copy from the Borrower title information setting forth, after giving pro forma effect to the Eagle Ford Acquisition and this Second Amendment, the status of title to at least 85% of the certificate of incorporation, including all amendments thereto, of Terex, certified total value (as of a recent date determined by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestbased on the present value of the Proved Reserves attributable thereto using a 9% discount rate) of the Oil and Gas Properties evaluated in the Reserve Report most recently delivered pursuant to Section 8.12(a) and including the Eagle Ford Assets.
(e) 6.5 The Incremental Lenders Administrative Agent shall have received evidence reasonably satisfactory to them it that on the Second Amendment Effective Date, the sale of $435,000,000 of 2017 Preferred Units pursuant to the 2017 Preferred Documents has been or will be consummated.
6.6 The Administrative Agent shall have received evidence reasonably satisfactory to it that on the Second Amendment Effective Date, all Liens on the Eagle Ford Assets (other than Liens permitted by Section 9.03) have been or will be released or terminated, subject only to the filing of applicable terminations and releases.
6.7 The Administrative Agent shall be reasonably satisfied with the environmental condition of the Eagle Ford Assets.
6.8 The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying:
(a) true, accurate and complete copies of (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding Purchase Agreements and (ii) all assignments executed and delivered in connection therewith, and all amendments thereto, which amendments shall contain terms and conditions reasonably acceptable to the Administrative Agent (collectively, the “Related Documents”);
(b) true, accurate and complete copies of the 2017 Preferred Documents (collectively, with the Related Documents, the “2017 Acquisition Documents”) which documents shall be in form and substance reasonably acceptable to the Administrative Agent;
(c) that, on the Second Amendment Effective Date, the applicable Loan Parties have (i) executed the 2017 Acquisition Documents, in accordance with the terms of the 2017 Acquisition Documents without waiver or amendment of any guarantees relating term or condition thereof which would be adverse to the interests of the Loan Parties or the Lenders (provided that, for the avoidance of doubt, any waiver or amendment of the Purchase Agreements or any other Related Document that (A) results in the exclusion of Assets (as defined in each Purchase Agreement) representing five percent (5%) or more of the total value of the Assets that were included in the Purchase Agreements evaluated by the Administrative Agent from the Eagle Ford Assets being acquired by the Borrower or (B) results in the exclusion of five percent (5%) or more of the proved, developed, producing reserves represented by Eagle Ford Assets evaluated by the Administrative Agent in its determination of the Borrowing Base established pursuant to Section 4 hereof, in each case, shall be deemed to be materially adverse to the interest of the Loan Parties and the Lenders) and (ii) acquired all of the Eagle Ford Assets other than those expressly identified on such bonds certificate; and
(d) as to the final purchase price for the Eagle Ford Assets including any portion thereof being deposited into an escrow account after giving effect to all adjustments as of the Second Amendment Effective Date contemplated by the Purchase Agreements.
6.9 No Default or Borrowing Base Deficiency shall have been irrevocably cancelled occurred and no be continuing as of the date hereof after giving effect to the terms of this Second Amendment.
6.10 The Administrative Agent shall have received all fees and other amounts due and payable to the Administrative Agent or any Lenders in respect connection with this Second Amendment.
6.11 The Administrative Agent shall have received duly executed Notes payable to each Lender requesting a Note in a principal amount equal to its Maximum Credit Amount (as amended by Section 3 hereof) dated as of the date hereof.
6.12 The Administrative Agent shall have received such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this Second Amendment to be effective when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 6 or the waiver of such guarantees remain outstandingconditions as permitted hereby. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 1 contract
Sources: Credit Agreement (WildHorse Resource Development Corp)
Conditions Precedent. The obligation This Agreement shall be deemed to be effective as of the Incremental Lenders Increase Effective Date (with the Accordion Amendment being deemed effective immediately prior to make Incremental the making of the Tranche D Term Loans hereunder shall be Loan), subject to the execution and delivery of the following documents, each in form and substance satisfactory to the Administrative Agent and satisfaction of the following additional conditions precedentset forth below:
(a) On this Agreement executed and delivered by the Incremental Term Borrower, the Guarantors, the Administrative Agent, the Increase Lenders, the Requisite Class Lenders of the Tranche C Loan Closing Dateand Lenders otherwise required to constitute Requisite Lenders;
(b) a Note substantially in the form of Exhibit H-2 to the Credit Agreement issued in favor of each Tranche D Lender reflecting the aggregate principal amount of such Lender’s Tranche D Loan (collectively, the “New Notes”);
(c) a certificate dated as of the date hereof signed by a duly authorized officer of the Borrower and each Guarantor (i) certifying and attaching the resolutions adopted by the Borrower and each Guarantor’s board of directors or trustees (or other appropriate governing body or Persons) authorizing the transactions described herein and evidencing the due authorization, execution and delivery of this Agreement, the New Notes and each of the conditions set forth other Loan Documents to which such Loan Party is a party executed in paragraphs connection with the Increase, (bii) certifying that the organizational documents of the Borrower and each Guarantor have not been amended, modified or rescinded since they were last furnished in writing to the Administrative Agent, and remain in full force and effect as of the date hereof, (iii) certifying that the Borrower and each Guarantor is duly formed, validly existing and in good standing under the laws of such entity’s jurisdiction of organization, and that there is no pending or to such officer’s knowledge, threatened proceeding for dissolution, liquidation or other similar matter with respect to the Borrower or any Guarantor, (iv) certifying that, immediately before and immediately after giving effect to the Increase, this Agreement, the Increasing Lender Agreements and the Augmenting Lender Agreements, (A) the representations and warranties contained in Section 7 of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (or in all respects to the extent that such representations and warranties are already subject to concepts of materiality) on and as of the Increase Effective Date with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in such respects on and as of such earlier date) and (c) of except that for purposes hereof, the representations and warranties contained in Section 4.01 7.11 of the Credit Agreement shall be satisfied, and each of deemed to refer to the Administrative Agent and the Incremental Lenders shall have received a certificate most recent statements furnished pursuant to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 Article IX of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy there has been no material adverse change in the business, assets, operations, condition (financial or otherwise) or properties of resolutions duly adopted by any of the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended Loan Parties since the date of the last amendment thereto shown on financial statements most recently delivered to the certificate of good standing furnished Administrative Agent pursuant to clause (i) abovethe Credit Agreement, and (DC) as no Default or Event of Default exists;
(d) to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or extent requested by the Administrative Agent may reasonably request.Agent, information from the Borrower with respect to any outstanding Disqualified Stock;
(e) The Incremental an Increasing Lender Agreement executed and delivered by each Increase Lender that is not an Augmenting Lender and the other parties thereto;
(f) an Augmenting Lender Agreement executed and delivered by each Augmenting Lender and the other parties thereto;
(g) favorable opinions of counsel to the Borrower and Guarantors acceptable to the Administrative Agent with respect to this Agreement and the Increase reflected herein and the New Notes; and
(h) payment by the Borrower in immediately available funds of the fees payable to the Increase Lenders shall have received evidence reasonably satisfactory to them that (i) set forth in the bonds issued fee letter delivered in connection with this Agreement and as otherwise provided by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pthe Credit Agreement.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Third Increase Agreement and Amendment (National Storage Affiliates Trust)
Conditions Precedent. (a) The obligation of LaSalle to fund any Revolving Loans on or after the Incremental Lenders to make Incremental Term Loans hereunder shall be Amendment Date is subject to the satisfaction or waiver on or before the Amendment Date of the following conditions precedent:
(ai) On the Incremental Term Loan Closing Date, LaSalle shall have received each of the conditions agreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing document list attached hereto as Schedule 15(a)(i) (the "AMENDMENT AGENDA");
(ii) Since December 31, 1999, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect, as determined by LaSalle in paragraphs its sole discretion;
(biii) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders LaSalle shall have received a certificate payment in full of all fees and expenses payable to that effect dated such date it by Borrower and executed by a Financial Officer of Terex.A-OK on or before the Amendment Date;
(biv) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent LaSalle shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory determined that immediately after giving effect to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy the making of the by-laws of Terex as in effect Special Accommodation Advance and any other Revolving Loans, requested to be made on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowAmendment Date, (B) that attached thereto is a true the issuance of the initial Letter of Credit, if any, requested to be made on the Amendment Date and complete copy (C) the payment or reimbursement by Borrower and A-OK of resolutions duly adopted LaSalle for all closing costs and expenses incurred in connection with the transactions contemplated hereby and by the board of directors of Terex authorizing A-OK Loan Agreement, on a pro forma basis the executionCombined Excess Availability shall not be less than One Million Dollars ($1,000,000), delivery and performance of this Agreement and the borrowings hereunder, Borrower's and A-OK's chief executive officers or chief financial officers shall have delivered to LaSalle a certificate to such effect; and
(v) LaSalle shall have received evidence satisfactory to LaSalle that the transactions contemplated by the Stock Purchase Agreement shall have been consummated strictly in accordance with their terms and that such resolutions all governmental and other third party approvals or consents necessary in connection therewith have not been modified, rescinded or amended obtained and are in full force and effect;
(vi) All conditions precedent set forth in paragraph 15 of the A-OK Loan Agreement shall have been satisfied strictly in accordance with their terms; and
(vii) The Obligors shall have executed and delivered to LaSalle all documents which LaSalle determines are reasonably necessary to consummate the transactions contemplated hereby. After the Closing Date, the obligation of LaSalle to make any requested Revolving Loan or to co-sign as applicant for any requested Letter of Credit is subject to the satisfaction of the conditions precedent set forth below. Each such request shall constitute a representation and warranty that such conditions are satisfied:
(Ci) All representations and warranties contained in this Agreement and the Other Agreements shall be true and correct on and as of the date of such request, as if then made, other than representations and warranties that relate solely to an earlier date;
(ii) No Default or Event of Default shall have occurred, or would result from the certificate making of incorporation the requested Revolving Loan or the issuance of Terex the requested Letter of Credit, which has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terexwaived; and
(iii) Since December 31, 1999, no event has occurred which has had or could reasonably be expected to have a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestMaterial Adverse Effect.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall become effective as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction date first set forth above upon receipt by the Agent of the following conditions precedentfollowing, in each case in form and substance reasonably satisfactory to the Agent:
(a) On this Amendment, duly executed by the Incremental Term Loan Closing DateBorrower, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent Lenders and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Agent;
(b) The Administrative Agent and Revolving Notes, duly executed by the Incremental Lenders Borrower in favor of the Lenders;
(c) the U.S. Bank Assignment, accompanied by such payments as are contemplated thereby;
(d) Term B Notes, duly executed by the Borrower in favor of the Lenders;
(e) evidence that the Mortgage Debt shall each have received a duly completed Borrowing Request been consummated in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lendersas amended hereby, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) including a copy of the certificate of incorporation, including all amendments thereto, of TerexMortgage Debt documentation, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date correct and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date effect by a Responsible Officer of the last amendment thereto shown Borrower;
(f) resolutions of the Borrower authorizing the Mortgage Debt, certified by a Responsible Officer of the Borrower;
(g) a fee equal to $4,809.38 (which is 0.25% of the increase in the Aggregate Revolving Loan Commitment as of the Second Amendment Closing Date), for the account of the Lenders on a pro-rata basis, in immediately available funds;
(h) payment of the certificate Agent's fees, costs and expenses, including legal fees and reimbursement of good standing furnished due diligence expenses, owing pursuant to clause Section 9.5; and
(i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other approvals, opinions, evidence and documents as any Lender, through the Incremental Lenders or the Administrative Agent Agent, may reasonably request; and the Agent's reasonable satisfaction as to all legal matters incident to this Amendment.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit Agreement (Point 360)
Conditions Precedent. The obligation of 5.1 This Amendment Agreement shall become effective when the Incremental Lenders Borrower has furnished, or caused to make Incremental Term Loans hereunder shall be subject furnished, to satisfaction the Agent, with sufficient copies for each Lender, each of the following conditions precedent:(the "Effective Time"):
(a) On the Incremental Term Loan Closing Date, each Copies of the conditions set forth in paragraphs (b) and (c) certificate of Section 4.01 incorporation of the Credit Agreement shall be satisfiedBorrower, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such of good standing regarding the Borrower from the States of California and Delaware and a certificate of compliance from the state of domicile of each Insurance Subsidiary, in each case certified by the appropriate governmental officer as of a date and executed by a Financial Officer of Terexnot earlier than ten (10) days before the date hereof.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of TerexCopies, certified as of a recent the date hereof by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy Borrower, of the its by-laws and of Terex as in effect on the Incremental Term Loan Closing Date its Board of Directors' resolutions (and at all times since a date prior to the date resolutions of the resolutions described in clause (Bother bodies, if any are deemed necessary by counsel for any Lender) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance execution of this Amendment Agreement and the borrowings hereunderother documents executed by it in connection herewith (collectively, and that such resolutions have not been modifiedthe "Amendment Documents").
(c) An incumbency certificate, rescinded or amended and are in full force and effect, (C) that the certificate executed as of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of hereof by the Secretary or Assistant Secretary executing of the Borrower, which shall identify by name and title and bear the signature of the officers of the Borrower authorized to sign the Amendment Documents and to make borrowings under the Credit Agreement, upon which certificate pursuant the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(d) A certificate, dated as of the date hereof, signed by an Authorized Officer of the Borrower to the effect that: (i) after giving effect to the Amendment Documents, no Default or Unmatured Default has occurred and is continuing; (ii) aboveno injunction or temporary restraining order which would prohibit the consummation of any of the transactions contemplated by any of the Amendment Documents or other litigation which could reasonably be expected to have a Material Adverse Effect or a Material Document Effect is pending or, to the best of such Person's knowledge, threatened; and (iviii) such other documents as all orders, consents, approvals, licenses, authorizations or validations of, or filings, recordings or registrations with, or exemptions by, any governmental or public body or authority, or any subdivision thereof, required in connection with any of the Incremental Lenders or the Administrative Agent may reasonably request.Amendment Documents have been or, prior
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that A written opinion of (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.)
Appears in 1 contract
Sources: Assignment and Assumption, Waiver and Amendment Agreement (Alleghany Corp /De)
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be amendments set forth herein is subject to the fulfillment, to the satisfaction of the Agent and its counsel, of the following conditions precedentprecedent on or before the Effective Date:
(a) On The Agent shall have received the Incremental Term Loan Closing Datefollowing, each all of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement which shall be satisfiedin form and substance satisfactory to the Agent and shall be duly completed and executed by the Borrower, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Banks, as applicable:
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, This Amendment;
(ii) addressed to the Administrative Agent and the Incremental Lenders and The New Notes;
(iii) covering such matters relating to Copies, certified by the Loan Documents as the Administrative Agent Secretary or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy an Assistant Secretary of the certificate of incorporation, including all amendments thereto, of Terex, certified Borrower as of a recent date by the Secretary of State of the State of Delawaredate, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by of the board of directors of Terex the Borrower in effect on the date hereof authorizing the execution, delivery and performance of this Agreement Amendment and the borrowings hereunder, other documents and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and transactions contemplated hereby;
(iv) Copies, certified by its corporate secretary as of a recent date, of the articles of incorporation, certificate of formation, and by-laws of the Borrower as in effect, or a certificate stating that there have been no changes to any such documents since the most recent date, true and correct copies thereof were delivered to the Agent;
(v) If the Borrower qualifies as a legal entity customer under the Beneficial Ownership Regulations, an executed Certificate of Beneficial Ownership for the Borrower and such other documents documentation and other information requested by the Agent and the Continuing Banks in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act;
(vi) A good standing certificate for the Borrower in the State of its formation dated as of a recent date; and
(vii) Such additional documents, certificates and information as the Incremental Lenders Agent or the Administrative Agent Continuing Banks may require pursuant to the terms hereof or otherwise reasonably request.
(b) After giving effect to this Amendment, the representations and warranties set forth in the Credit Agreement shall be true and correct in all material respects on and as of the date hereof; provided, however, that for purposes of the representations in Section 3.1 thereof, the annual and quarterly financial information referred to in such Section shall be deemed to be the most recent such information furnished to each Bank.
(c) No Default or Event of Default shall have occurred and be continuing as of the date hereof.
(d) All Revolving Credit Loans of the Departing Bank outstanding under the Existing Credit Agreement as of the Effective Date, including any accrued interest thereon, and all fees owed to the Departing Bank under the Existing Credit Agreement, shall have been paid in full.
(e) The Incremental Lenders Agent shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. such fees as shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and agreed.
(iif) any guarantees relating to such bonds The Agent shall have been irrevocably cancelled received, to the extent invoiced, reimbursement of all fees and no amounts expenses of counsel to the Agent required to be paid or reimbursed by the Borrower hereunder. All of the foregoing fees shall be in all respects, fully earned, due and payable in respect of such guarantees remain outstandingon the Effective Date and non-refundable and non- creditable thereafter.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall not be effective against any of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of parties hereto unless and until the following conditions precedentAdministrative Agent has been furnished with the following:
(a) On the Incremental Term Loan Closing DateThis Amendment, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and duly executed by a Financial Officer of Terexall the parties hereto.
(b) The Administrative Agent and Intermediate Term Credit Note, duly executed by the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit AgreementBorrower.
(c) The Administrative Agent shall have receivedCertified copies of all corporate action taken by the Borrower, on behalf including resolutions of itself and its Board of Directors, authorizing the Incremental Lendersexecution, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably requestdelivery, and Terex hereby requests such counsel performance of this Amendment and each other document to deliver such opinionwhich it is a party and which is required to be delivered pursuant to this Amendment.
(d) The An Intercreditor Agreement in form and content satisfactory to the Administrative Agent Agent, between the Borrower and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporationAg Acceptance pertaining to their relative priorities in collateral securing loans and advances made to common Customers, including all amendments thereto, of Terex, certified as of a recent date duly executed by the Secretary of State of the State of DelawareBorrower and Ag Acceptance and consented to and approved by CapMAC, Triple-A One and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; Rabobank.
(iie) a A certificate of the Secretary or an Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex Borrower as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) abovethe Articles of Incorporation and the Bylaws of the Borrower having not been amended, modified or changed in any manner since March 12, 1997, and (Dji) as the incumbency of the officer or officers of the Borrower who sign this Amendment, the Intermediate Term Credit Note and such other documents, instruments, amendments and modifications to be executed by the Borrower in connection with this Amendment, including therein a signature specimen of such officer or officers.
(f) The favorable written opinion of legal counsel to the incumbency Borrower, in form, content and specimen signature of each officer executing substance satisfactory to the Administrative Agent, to the effect that (i) this Amendment, the Intermediate Term Credit Note, the Intercreditor Agreement and such other documents, instruments, amendments and modifications to be executed by the Borrower in connection with or pursuant to this Amendment have been duly authorized by all necessary corporate action on behalf of Terex; (iii) a certificate of another officer as to the incumbency Borrower and specimen signature each has been duly executed and delivered on behalf of the Secretary or Assistant Secretary executing Borrower and are valid, binding and enforceable against the certificate pursuant to Borrower in accordance with the terms thereof, (ii) above; to the knowledge of such counsel, there is no provision in any indenture, contract or agreement to which the Borrower is a party or by which it is bound which prohibits the execution and (iv) delivery by the Borrower of this Amendment, the Intermediate Term Credit Note, the Intercreditor Agreement or any such other documents document, instrument, amendment or modification to be executed by the Borrower in connection with or pursuant to this Amendment or which prohibits the performance or observance by a Borrower of this Amendment, the Intermediate Term Credit Note, the Intercreditor Agreement or any such other document, instrument, amendment or modification to be executed by the Borrower in connection with or pursuant to this Amendment and covering such other matters as the Incremental Lenders or the Administrative Agent may shall reasonably request.
(eg) The Incremental Lenders shall have received evidence reasonably satisfactory All other documents, agreements, financing statements and amendments to them that (i) Loan Documents as necessary in order to grant and perfect each Lien in Collateral as first priority Liens in favor of the bonds issued Banks to the extent required by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pthe Loan Agreement, as amended hereby.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall be effective upon receipt by the Administrative Agent of each of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentfollowing:
(a) On the Incremental Term Loan Closing Datea counterpart of this Amendment, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfiedduly executed by B▇▇▇▇▇▇▇, L▇▇▇▇▇▇, and each of the Administrative Agent Agent, in form and substance satisfactory to the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Administrative Agent;
(b) The a certificate of the chief financial officer, treasurer or assistant treasurer (or other comparable financial officer) of the Borrower, certifying that (x) as of the date hereof, no Default exists, and no default under the Loan Documents exists for which the Administrative Agent has provided notice of such default and Borrower has failed to remedy such default within the Incremental Lenders shall provided cure period after receiving such notice and (y) each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.representations and warranties made by the Borrower in or pursuant to the Loan Documents is true and correct in all material respects on and as of the date hereof, as if made on and as of the date hereof except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date; and
(c) The Administrative Agent shall have receivedall fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including (x) for the ratable account of each Lender, an extension fee in the amount of three one-hundredths of one percent (0.03%) of the aggregate principal amount of the Revolver Commitments of all of the Lenders in effect on behalf the Fourth Amendment Effective Date, in immediately available funds and (y) reimbursement or payment of itself all out-of-pocket expenses (including reasonable fees, charges, and the Incremental Lenders, a favorable written opinion disbursements of W▇▇▇▇▇ B▇▇▇ ▇▇▇▇▇▇▇▇▇ (US) LLP, General Counsel of Terex, satisfactory counsel to the Administrative Agent Agent) required to be reimbursed or paid by Borrower hereunder, under any other Loan Document, and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to under any agreement with the Administrative Agent for preparation and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance execution of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestAmendment.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Conditions Precedent. The obligation of This Agreement shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction date (the "Effective Date") each of the following conditions precedentprecedent are satisfied or waived by the Lenders hereunder:
(a) On as of the Incremental Term Loan Closing Effective Date, each there exists no "Default" or "Event of Default" (under and as defined in the conditions set forth in paragraphs (bPrior Agreement) and (c) no Default or Event of Section 4.01 Default hereunder and, if the Effective Date is other than the date of this Agreement, the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have has received a certificate to that effect dated such date and executed by a Financial Officer of Terex.the Borrower certifying the same;
(b) The Administrative the representations and warranties contained in Article 2 are true and correct as of the Effective Date and, if the Effective Date is other than the date of this Agreement, the Agent and the Incremental Lenders shall each have has received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 certificate of the Credit Agreement.Borrower certifying the same;
(c) The Administrative the Agent shall have has received, on behalf in sufficient numbers for distribution to each of itself the Lenders in form and substance satisfactory to the Agent and the Incremental Lenders, the following:
(i) a favorable written duly executed copy of this Agreement;
(ii) a certificate of status in respect of the Borrower issued under the laws of its governing jurisdiction;
(iii) an officer's certificate of the Borrower, attaching thereto, inter alia: (i) its articles of amalgamation and by-laws; (ii) specimen signatures of the individuals who will be executing the Loan Documents on its behalf; and (iii) a resolution of its board of directors relating to its authority to execute, deliver and perform its obligations under the Loan Documents and the manner in which and by whom the foregoing documents are to be executed and delivered;
(iv) an officer's certificate of the Borrower evidencing that all required securityholder approvals have been received with respect to the Arrangement and the Plan of Arrangement and that the Arrangement has been completed without waiver or amendment of any terms or conditions of the Arrangement Agreement or the Plan of Arrangement (other than such waivers or amendments previously consented to in writing by the Lenders and any amendments of an immaterial nature);
(v) an officer's certified copy of the Final Order and the filed Articles of Amalgamation;
(vi) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, General Counsel of Terexcounsel to the Borrower addressed to the Agent and each Lender with respect to the Loan Documents, in form and substance satisfactory to the Administrative Lenders, acting reasonably;
(vii) an opinion of Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating each Lender with respect to the Loan Documents transactions provided for herein, in form and substance satisfactory to the Lenders, acting reasonably; and
(viii) such other information as may be reasonably requested by the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Agent; and
(d) The Administrative Agent prior to or concurrently with the execution of this Agreement, each Fronting Lender has received, in form and substance satisfactory to it, an agreement between the Incremental Lenders shall each have received (iBorrower and such Fronting Lender with respect to the fees payable pursuant to Section 5.5(b) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date duly executed by the Secretary of State of the State of Delaware, Borrower and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestFronting Lender.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation Section 2.01 of this Agreement shall become effective on and as of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of first Business Day (the "EFFECTIVE DATE") on or before March 31, 2006 on which the following conditions precedent:precedent have been satisfied or waived (and the obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Effective Date):
(a) On The Administrative Agent shall have received on or before the Incremental Term Loan Closing DateEffective Date the following, each of the conditions set forth dated such day (unless otherwise specified), in paragraphs (b) form and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of substance reasonably satisfactory to the Administrative Agent (unless otherwise specified):
(i) The Notes payable to the order of any Lender requesting the same pursuant to the terms of Section 2.16.
(ii) A security agreement in substantially the form of Exhibit D hereto (the "SECURITY AGREEMENT"), duly executed by each Loan Party, together with:
(A) certificates representing the Initial Pledged Equity referred to therein (to the extent certificated) accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein (to the extent evidenced by instruments), indorsed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, to the extent such Collateral may be perfected by filing under the Uniform Commercial Code,
(C) completed requests for information, dated on or before the Effective Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) the Intellectual Property Security Agreement duly executed by each Loan Party,
(E) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the security interest created thereunder,
(F) evidence of the insurance required by the terms of the Security Agreement, and
(G) evidence that all other action that the Agents may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and consent agreements).
(iii) Certified copies of the Purchase Agreement, duly executed by the parties thereto, together with all agreements, instruments and other documents delivered in connection therewith as the Agents shall request.
(iv) Certified copies of the resolutions of the Board of Directors (or similar constitutive body) of each Loan Party approving the financing transactions evidenced hereby and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate, limited liability company or other organizational action and governmental and other third party approvals and consents, if any, with respect to the financing transactions evidenced hereby and each Loan Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of organization of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter (or similar constitutive document) of such Loan Party and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Loan Party's charter (or similar constitutive document) on file in such Secretary's office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President or its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter (or similar constitutive document) of such Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws (or similar constitutive document) of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Effective Date and (C) the due organization and, to the extent applicable, good standing or valid existence of such Loan Party organized under the laws of the jurisdiction of its organization, and the Incremental Lenders shall have received a absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate to that effect dated such date and executed by a of the Chief Financial Officer of Terexthe Borrower, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date and (B) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party.
(ix) A certificate attesting to the Solvency of the Loan Parties, taken as a whole, before and after giving effect to the Transaction, from the Chief Financial Officer of the Borrower.
(x) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is reasonably satisfactory to the Collateral Agent.
(xi) A favorable opinion of Sidley Austin LLP, special counsel for the Loan Parties, in substantially the form of Exhibit F hereto and as to such other matters as the Agents may reasonably request.
(b) The Administrative Agent Agents shall be reasonably satisfied that all Non-Surviving Debt has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated and that all Surviving Debt shall be on terms and conditions reasonably satisfactory to the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit AgreementAgents.
(c) The Administrative Agent There shall have receivedoccurred no Material Adverse Change since September 30, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion2005.
(d) The Administrative Agent and To the Incremental Lenders shall each have received (i) a copy knowledge of the certificate Borrower, except as set forth in the disclosure schedules under the Agreement of incorporationSale and Purchase dated June 22, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as 2005 with respect to the good standing of Terex Acquisition (as of a recent date amended, restated, supplemented or otherwise modified from such Secretary of State; (ii) a certificate of time to time, the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex "PURCHASE AGREEMENT"), as in effect on the Incremental Term Loan Closing Date and at all times since Effective Date, the absence of any change, or any event involving a date prior to prospective change, in the date business, financial condition or results of operation of TD Waterhouse or any of the resolutions described "Business Subsidiaries" (as defined in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Purchase Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are as in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown effect on the certificate of good standing furnished pursuant Effective Date) which has had, or would reasonably be expected to clause have, individually or in the aggregate, a "Material Adverse Effect" (ias defined in the Purchase Agreement as in effect on the Effective Date) aboveon TD Waterhouse, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.since October 31, 2004;
(e) All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Agents) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the Agents, in each case that restrains, prevents or imposes materially adverse conditions upon the financing transactions evidenced hereby or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(f) The Incremental Borrower shall have paid all accrued fees of the Agents and the Lenders due and payable pursuant to the Fee Letters and all accrued reasonable, out-of-pocket expenses of the Lead Arranger (including the accrued reasonable fees and expenses of Shearman & Sterling LLP and, to the extent reasonably required, local and special counsel with respect to collateral matters) to the extent invoices shall have been presented to the Borrower prior to the Effective Date with respect thereto.
(g) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the Effective Date, or the Lead Arranger shall have received evidence reasonably satisfactory to them the Lead Arranger that the Acquisition shall be consummated promptly following the Effective Date (i) in connection with which an escrow arrangement reasonably satisfactory to the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. Lead Arranger regarding the proceeds of the Advances shall have been discharged made), in full each case in accordance with the Purchase Agreement (and no amounts payable in respect of such bonds remain outstanding and (iiall other related documentation) any guarantees relating last received by the Lead Arranger prior to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingDecember 15, 2005 without amendment, modification or waiver thereof that is materially adverse to the Lenders or is otherwise consented to by the Lead Arranger.
Appears in 1 contract
Conditions Precedent. The obligation of each Purchaser to purchase the Incremental Lenders Notes at the Closing pursuant to make Incremental Term Loans hereunder shall be Section 2.1 hereof, is subject to satisfaction of the following conditions precedentcondition that such Purchaser shall have received, on the Closing Date, the following, each dated the Closing Date unless otherwise indicated, in form and substance satisfactory to such Purchaser:
(a) On the Incremental Term Loan Closing Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.
(b) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written Favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel Esq., in-house counsel to the Credit Parties, substantially in the form attached hereto as Exhibit C, it being understood that to the extent that such opinion of Terexcounsel to the Credit Parties shall rely upon any other opinion of counsel, each such other opinion shall be in form and substance reasonably satisfactory to the Administrative Agent Purchasers and shall provide that Purchasers may rely thereon.
(b) Resolutions of the Incremental LendersBoard of Directors of each Credit Party, certified by the Secretary or Assistant Secretary of such Credit Party, as of the Closing Date, to be duly adopted and in full force and effect on such date, authorizing (i) the consummation of each of the transactions contemplated by this Agreement and (ii) specific officers to execute and deliver this Agreement and each other Loan Document to which it is a party.
(c) Governmental certificates, dated the Incremental Term Loan most recent practicable date prior to the Closing Date, (ii) addressed to with telegram updates where available, showing that each Credit Party is organized and in good standing in the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably requeststate of its organization, and Terex hereby requests such counsel is qualified as a foreign corporation and in good standing in all other jurisdictions in which it is qualified to deliver such opiniontransact business.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a A copy of the certificate of incorporation, including incorporation and all amendments thereto, thereto of Terexeach Credit Party, certified as of a recent date by the Secretary of State of the State state of Delawareits organization, and a certificate as to the good standing copies of Terex as of a recent date from such Secretary of State; (ii) a certificate of each Credit Party's by-laws, certified by the Secretary or Assistant Secretary of Terex such Credit Party as true and correct as of the Closing Date.
(e) Each of the Notes duly executed by Greka AM.
(f) Each of the Collateral Documents, duly executed by the parties thereto.
(g) UCC-1 financing statements reflecting each Credit Party as the debtor in favor of Collateral Agent for the benefit of the Purchasers, in form and substance satisfactory to the Purchasers.
(h) Certificates of the Secretary or an Assistant Secretary of each Credit Party, dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowDate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature signatures of each officer the officers of such Credit Party executing this Agreement on behalf Agreement, the Notes, each other Loan Document to which it is a party and any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the such Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestSecretary.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) Certificate of the bonds issued by Fantuzzi Finance S.A. President of each Credit Party, dated the Closing Date, stating that all of the representations and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect warranties of such bonds remain outstanding Credit Party contained herein or in the other Loan Documents are true and correct on and as of the Closing Date as if made on such date and that no breach of any covenant contained in Section V has occurred or would result from the Closing hereunder.
(iij) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingSuch additional documentation as the Collateral Agent or the Required Holders may reasonably require.
Appears in 1 contract
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction this Modification is conditioned upon fulfillment of all of the following conditions precedentprecedent as required by Lender, with any unfulfilled conditions precedent (unless waived by Lender) to become conditions subsequent to be immediately satisfied:
(a) On Borrower, Lender and the Incremental Term Loan Closing Date, each of the conditions guarantors set forth in paragraphs (b) and (c) the attached Reaffirmation of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders Guaranty shall have received executed a certificate to that effect dated such date and executed by a Financial Officer copy of Terex.this Modification;
(b) The Administrative Agent Borrower shall have paid Lender the Loan Fee of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) as set forth in the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with Term Note, which fee (at Lender’s option) may be charged as an Advance under the provisions Loan Agreement and added to the Obligations regardless of Section 2.03 of the Credit Agreement.whether an Overadvance will result;
(c) The Administrative Agent Borrower shall have receivedopened a money market account with Tech Credit Union (“MMA”), on behalf which shall be initially funded with all of itself the proceeds of the Term Note, with such MMA to be maintained until such time as all Obligations are repaid in full and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably requestare terminated, and Terex hereby requests with all proceeds of equity raises to be maintained in such counsel to deliver such opinionMMA until utilized by Borrower.
(d) The Administrative Agent and the Incremental Lenders shall each have received delivery, execution, resolution and/or completion (as applicable), to Lender’s satisfaction, of all other documents, matters or acts required by Lender in connection with this Modification including, without limitation:
(i) Borrower shall have executed and delivered a copy of the certificate of incorporationTerm Note, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of Statebeing entered into concurrently herewith; and
(ii) a certificate Borrower shall have paid Lender’s attorneys’ fees and costs incurred in connection with the preparation and negotiation of this Modification and the Secretary or Assistant Secretary of Terex dated Term Note, which fees and costs (at Lender’s option) may be charged as an Advance under the Incremental Term Loan Closing Date Agreement and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior added to the date Obligations regardless of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably requestwhether an Overadvance will result.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Conditions Precedent. The obligation of This Amendment shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of date (the “Amendment No. 4 Effective Date”) on which the following conditions precedentprecedent are satisfied:
(a) On this Amendment shall have been executed and delivered by the Incremental Term Borrower, the Co-Borrower, other Loan Closing Date, each of the conditions set forth in paragraphs (b) Parties and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Agent;
(b) The Administrative Agent all costs, fees, expenses (including without limitation legal fees and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions expenses of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, General Counsel the counsel to the Administrative Agent), in each case solely to the extent required to be paid pursuant to Section 10.04 of Terexthe Amended Credit Agreement shall have been paid to the extent due (and, satisfactory in the case of expenses, invoiced in reasonable detail at least three (3) Business Days prior to the Amendment No. 4 Effective Date);
(c) after giving effect to this Amendment, (i) the representations and warranties of the Borrowers and each other Loan Party contained in Article V of the Credit Agreement, Article II hereunder and each other Loan Document are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 4 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date, and (ii) no Default or Event of Default shall exist, or would result immediately after giving effect to the provisions of this Amendment. A Responsible Officer of the Borrowers shall have delivered a certificate to the Administrative Agent and certifying as to the Incremental Lenders, matters set forth in the foregoing clauses (i) dated the Incremental Term Loan Closing Date, and (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.); and
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have posted the Amended Credit Agreement to all the Lenders on December 21, 2022 and shall not have received evidence reasonably satisfactory by 5:00 p.m. (New York City time) on December 29, 2022 (i.e. the fifth Business Day after the date this Amendment is posted to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.pLenders), written notice of objection to this Amendment from Lenders comprising the Required Lenders.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Conditions Precedent. The obligation of Save as the Incremental Lenders to make Incremental Master Issuer, Funding and the Security Trustee may otherwise agree, each Term Loans hereunder shall Advance will not be subject to satisfaction of available for utilisation on the following conditions precedentrelevant Closing Date unless:
(a) On the Incremental Term Loan related Series and Class of Master Issuer Notes has been issued by the Master Issuer on the relevant Closing Date, each Date and the subscription proceeds thereof have been received by or on behalf of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Master Issuer;
(b) The Administrative Agent and the Incremental Lenders shall each Security Trustee has confirmed to Funding that it or its advisers have received a duly completed Borrowing Request (at any time on or prior to such Closing Date) all the information and documents listed in accordance with Schedule 1 hereto (Conditions Precedent) in form and substance satisfactory to the provisions of Section 2.03 of the Credit Agreement.Security Trustee;
(c) The Administrative Agent shall have received, on behalf of itself Funding and the Incremental Lenders, Master Issuer have signed a favorable written opinion Term Advance Supplement in respect of ▇▇▇▇ ▇▇▇▇▇, General Counsel that Term Advance (substantially in the form set out in Schedule 3 hereto (Form of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.Advance Supplement));
(d) The Administrative Agent and Funding has confirmed in the Incremental Lenders shall each have received applicable Term Advance Supplement that:
(i) a copy no Master Intercompany Loan Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the certificate making of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of StateTerm Advance; and
(ii) a certificate the representations set out in CLAUSE 13 are true on and as of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan relevant Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior by reference to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true facts and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.circumstances then existing;
(e) The Incremental Lenders shall Funding has delivered a solvency certificate substantially in the form set out in Schedule 4 hereto;
(f) the Master Issuer has confirmed in the applicable Term Advance Supplement that no Note Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the making of such Term Advance;
(g) each of the Rating Agencies has confirmed in writing to the Security Trustee that there will not, as a result of the Master Issuer issuing any Master Issuer Notes on the Closing Date, be any adverse effect on the then current ratings by the Rating Agencies of any then outstanding Master Issuer Notes of the Master Issuer;
(h) one or more Deeds of Accession relating to the Funding Deed of Charge have received evidence reasonably satisfactory been executed by any additional Funding Secured Creditors and the parties to them that the Funding Deed of Charge; and
(i) all other conditions precedent as may be specified in the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall applicable Term Advance Supplement have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstandingsatisfied.
Appears in 1 contract
Sources: Master Intercompany Loan Agreement (Holmes Funding LTD)
Conditions Precedent. The obligation Save as the Master Issuer, Funding and the Security Trustee may otherwise agree, and save in respect of a Term NR VFN Advance other than as provided for in Clause 6.4(b), each Term Advance will not be available for utilisation on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedentrelevant Closing Date unless:
(a) On the Incremental Term Loan related Series and Class of Master Issuer Notes has been issued by the Master Issuer on the relevant Closing Date, each Date and the subscription proceeds thereof have been received by or on behalf of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Master Issuer;
(b) The Administrative Agent and the Incremental Lenders shall each Security Trustee has confirmed to Funding that it or its advisers have received a duly completed Borrowing Request (at any time on or prior to such Closing Date) all the information and documents listed in accordance with Schedule 1 (Conditions Precedent) hereto in form and substance satisfactory to the provisions of Section 2.03 of the Credit Agreement.Security Trustee;
(c) The Administrative Agent shall have received, on behalf of itself Funding and the Incremental Lenders, Master Issuer have signed a favorable written opinion Term Advance Supplement in respect of ▇▇▇▇ ▇▇▇▇▇, General Counsel that Term Advance (substantially in the form set out in Schedule 3 (Form of Terex, satisfactory to the Administrative Agent and the Incremental Lenders, (iTerm Advance Supplement) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.hereto);
(d) The Administrative Agent Funding has confirmed in the applicable Term Advance Supplement that:
(i) no Master Intercompany Loan Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the Incremental Lenders shall making of such Term Advance; and
(ii) the representations set out in Clause 13 are true on and as of the relevant Closing Date by reference to the facts and circumstances then existing;
(e) Funding has delivered a solvency certificate substantially in the form set out in Schedule 4 (Form of Solvency Certificate) hereto;
(f) the Master Issuer has confirmed in the applicable Term Advance Supplement that no Note Event of Default has occurred and is continuing unremedied (if capable of remedy) or unwaived or would result from the making of such Term Advance;
(g) each have received of the Rating Agencies has confirmed in writing to the Security Trustee that there will not, as a result of the Master Issuer issuing any Master Issuer Notes on the Closing Date, be any adverse effect on the then current ratings by the Rating Agencies of any then outstanding Rated Master Issuer Notes of the Master Issuer (it being acknowledged that none of the Rating Agencies has any obligation to provide such confirmation at any time and that the confirmation of one of the Rating Agencies may be sufficient for that purpose provided that (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date written request for confirmation or response has been delivered to each Rating Agency by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; the Master Issuer (iii) a certificate of another officer as copied to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (iiSecurity Trustee) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees one or more Rating Agencies either (x) indicates it does not consider such confirmation or response necessary, or (y) such request elicits no confirmation or response by such Rating Agency within a reasonable timeframe);
(h) one or more Deeds of Accession relating to such bonds shall the Funding Deed of Charge have been irrevocably cancelled executed by any additional Funding Secured Creditors and no amounts payable the parties to the Funding Deed of Charge; and
(i) all other conditions precedent as may be specified in respect of such guarantees remain outstanding.the applicable Term Advance Supplement have been satisfied.
Appears in 1 contract
Sources: Master Intercompany Loan Agreement
Conditions Precedent. The obligation effectiveness of the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of the following conditions precedent:
(ai) On no Default or Event of Default shall have occurred and be continuing on the date of the effectiveness of the Incremental Term Loan Closing Date, and no Default or Event of Default would occur as a result of the effectiveness of the Incremental Term Loan;
(ii) each of the conditions set forth representations and warranties made by any Loan Party in paragraphs or pursuant to the Loan Documents shall be true and correct in all material respects immediately prior to, and after giving effect to, the incurrence of the Incremental Term Loan as if made on and as of each such date except to the extent such representations or warranties are made as of a specified date, in which case, such representations and warranties shall be true and correct in all material respects as of such date;
(biii) after giving pro forma effect to such Incremental Term Loans (A) the Borrower shall be in compliance with Section 9.01 and (cB) the ratio of Section 4.01 of Net Secured Debt to Combined EBITDAX for the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate most recent four fiscal quarters for which financial statements are available is less than 2.5 to that effect dated such date and executed by a Financial Officer of Terex.1.0;
(biv) The Administrative Agent and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.
(c) The Administrative Agent shall have receivedreceived any customary closing documents or information, including legal opinions, board resolutions, officers’ certificates, certificates from independent engineers and reaffirmations agreements, reasonably requested by the Administrative Agent, in a form consistent with those delivered on behalf of itself the Closing Date under Article VI to the extent applicable;
(v) the Borrowers and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, satisfactory each New Lender shall have executed and delivered to the Administrative Agent a New Lender Supplement and the Incremental Lenders, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent such other agreements and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents documentation as the Administrative Agent or the Incremental Lenders shall reasonably requestspecify to evidence the New Lender becoming a Lender hereunder, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received (i) a copy of the certificate of incorporation, including all amendments thereto, of Terex, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions other Loan Documents shall have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause in accordance with Section 2.07(d); and
(i) above, and (D) as to the incumbency and specimen signature of each officer executing this Agreement on behalf of Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (ivvi) such other documents conditions, if any, as the Borrowers, Incremental Term Lenders or the and Administrative Agent may reasonably requestagree.
(e) The Incremental Lenders shall have received evidence reasonably satisfactory to them that (i) the bonds issued by Fantuzzi Finance S.A. and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full and no amounts payable in respect of such bonds remain outstanding and (ii) any guarantees relating to such bonds shall have been irrevocably cancelled and no amounts payable in respect of such guarantees remain outstanding.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Rice Energy Inc.)
Conditions Precedent. The obligation of This Amendment shall become effective on the Incremental Lenders to make Incremental Term Loans hereunder shall be subject to satisfaction of first Business Day (the following conditions precedent“Effective Date”) on which the Agent or its counsel has received:
(a) On the Incremental Term Loan Closing Datethis Agreement, duly executed by Borrower, each of Lender, the conditions set forth in paragraphs (b) Exiting Lender, the New Lender and (c) of Section 4.01 of the Credit Agreement shall be satisfied, and each of the Administrative Agent and the Incremental Lenders shall have received a certificate to that effect dated such date and executed by a Financial Officer of Terex.Agent;
(b) The Administrative Agent a Joinder Agreement, duly executed by Borrower, the New Lender and the Incremental Lenders shall each have received a duly completed Borrowing Request in accordance with the provisions of Section 2.03 of the Credit Agreement.Agent; and
(c) The Administrative Agent shall have receiveda certificate from the Secretary of the Borrower dated as of the Effective Date, on behalf of itself in form and the Incremental Lenders, a favorable written opinion of ▇▇▇▇ ▇▇▇▇▇, General Counsel of Terex, substance satisfactory to the Administrative Agent and the Incremental LendersAgent, (i) dated the Incremental Term Loan Closing Date, (ii) addressed to the Administrative Agent and the Incremental Lenders and (iii) covering such matters relating to the Loan Documents as the Administrative Agent or the Incremental Lenders shall reasonably request, and Terex hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent and the Incremental Lenders shall each have received certifying that (i) a copy of the certificate Certificate of incorporationFormation and Operating Agreement of the Borrower and any other Governing Documents, including as well as all amendments thereto, of Terexare attached, certified as of a recent date by the Secretary of State of the State of Delaware, and a certificate as to the good standing of Terex as of a recent date from such Secretary of State; (ii) other than as reflected by the documents delivered pursuant to (i) above, no action or proceeding for the amendment of such Person’s Governing Documents has been taken or is presently contemplated, (iii) attached is a certificate complete and correct copy of an authorization by or resolution of the Secretary Borrower’s members, managers or Assistant Secretary of Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of Terex as in effect on the Incremental Term Loan Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of Terex (as applicable) authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, Loan Agreement as amended hereby and that such resolutions have not been modified, rescinded or amended the transactions contemplated hereby and are in full force and effect, (C) that the certificate of incorporation of Terex has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) abovethereby, and (Div) as to the incumbency and a specimen signature of each manager, member or officer executing of the Borrower who is authorized to execute this Agreement on behalf of Terex; (iii) a certificate the Borrower is included and that each of another officer such individuals is duly qualified as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Incremental Lenders or the Administrative Agent may reasonably request.Effective Date;
(ed) The Incremental Lenders shall have received evidence reasonably satisfactory to them that confirmation by the Agent of payment by the Borrower of (i) the bonds issued by Fantuzzi Finance S.A. fees described in the letter agreement between the Borrower and guaranteed by Reggiane Cranes & Plants S.p.A. shall have been discharged in full the Agent with respect to the fees payable to the Lenders (other than the Exiting Lender) and no amounts payable in respect of such bonds remain outstanding the New Lender, dated the date hereof, and (ii) any guarantees relating the fees described as payable on the date hereof in the fee letter agreement between the Borrower and the Agent with respect to such bonds shall have been irrevocably cancelled the Agent’s fees, dated the date hereof, and no amounts payable (iii) the Lender Group Expenses incurred by Agent in respect of such guarantees remain outstandingconnection with this Agreement.
Appears in 1 contract