Restatement Date. This Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02): (a) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such document. (b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent. (c) The Administrative Agent shall have received an executed legal opinion (addressed to the Administrative Agent and the Lenders) from (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Parties, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions. (d) The Administrative Agent shall have received documents and certificates relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counsel. (e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent. (f) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03. (g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder. (h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder). (i) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect. (j) The Lenders shall have received (i) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available. (k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens. (l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Sources: Credit Agreement (Manitowoc Co Inc)
Restatement Date. This Agreement shall become effective upon, and only upon, In addition to the satisfaction or waiver of each of requirement set forth in Section 4.01, on the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):Restatement Date:
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party and party to each financial institution identified on Schedule 2.01 of the following Loan Documents either (ix) a an original counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) such Loan Document signed on behalf of such Credit Party or financial institution party or (iiy) written evidence satisfactory to the Administrative Agent (which may include telecopy a facsimile copy or electronic transmission PDF copy of a each signed signature page of this Agreement or such Reaffirmation Agreementpage) that such party has signed a counterpart of such documenteach of the following:
(i) this Agreement,
(ii) each Collateral Document (other than any Restatement Date Mortgage Amendment), and
(iii) each promissory note requested pursuant to Section 2.09(e), if any.
(b) The Administrative Agent shall have received documents and certificates relating to received, on behalf of itself, the authorization of this Agreement and Collateral Agent, the transactions contemplated hereby by the Borrowers Lenders and each Subsidiary Guarantor in form and substance satisfactory to Issuing Bank on the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion (addressed to the Administrative Agent and the Lenders) from (i) Restatement Date, favorable written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Loan Parties, (A) dated the Restatement Date, (B) addressed to each Issuing Bank, the Administrative Agent, the Collateral Agent and the Lenders and (iiC) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Borrower Agent and covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby requests instructs such counsel to deliver such opinions.
(dc) The Administrative Agent shall have received documents and certificates relating each of the following for each Loan Party:
(i) a copy (which shall be delivered as attachments to the certificates required in the following clause (ii)) of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Person, (A) in the case of any such Person that is an entity registered with the state of its formation (which shall include, without limitation, each such Person that is a corporation), certified as of a recent date by the Secretary of State (or other similar official) and a certificate as to the good standing (which, in the case of each such Person that is a Texas entity, shall include both a certificate of account status (or comparable document) and a certificate of existence) of each such Person as of a recent date from such Secretary of State (or other similar official) or (B) in the case of each such Person that is not a registered business organization, existence and good standing certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, as applicable, of such Person; and
(ii) a certificate of the Secretary, Assistant Secretary or any Responsible Officer of each Borrower Loan Party, in each case dated the Restatement Date and each Subsidiary Guarantor certifying:
(A) that attached thereto is a true, correct and the authorization complete copy of the Transactions by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Person, together with any and all amendments thereto, as in form effect on the Restatement Date and substance satisfactory at the time the resolutions described in clause (B) below were adopted,
(B) that attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Person (or its managing general partner or managing member); that such resolutions authorize (i) the execution, delivery and performance of the Loan Documents to which such Person is a party and (ii) in the case of the Borrower, the Borrowings hereunder; that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Restatement Date,
(C) that attached thereto is a true, correct and complete copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Person, certified as required in clause (i) above, and that such governing document or documents have not been amended since the date of the last amendment attached thereto,
(D) as to the Administrative Agent incumbency and its counselspecimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Person, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Person or, to the knowledge of such Person, threatening the existence of such Person.
(ed) The Borrower Collateral and Guarantee Requirement with respect to items to be completed as of the Restatement Date shall have caused to be delivered to been satisfied and the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificatecompleted Perfection Certificate from each Person required to deliver one or more Collateral Documents pursuant to the Collateral and Guarantee Requirement, dated the Restatement Date and signed by the President, a Vice President or a Financial Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including the Borrowerresults of a search of the UCC (or equivalent under other similar law) filings made with respect to such Persons in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released.
(e) The Administrative Agent shall have received evidence or assurances satisfactory to it that, confirming after giving effect to the application of the proceeds of the initial Borrowing hereunder, the Borrower will have at least U.S.$20.0 million in Liquidity (comprised of cash or undrawn availability under the Revolving Facility that would be permitted to be drawn in compliance as of such date with the conditions set forth in paragraphs Financial Performance Covenants).
(a)f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding Indebtedness other than (bi) the Loans and other extensions of credit under this Agreement and (cii) of Section 4.03.other Permitted Indebtedness
(g) There has not been any Material Adverse Effect since December 31, 2016.
(h) The Lenders, the Administrative Agent and the Arrangers Agents shall have received all fees and payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Restatement Date (including amounts payable pursuant to the Engagement Letter) and, to the extent invoiced, all other amounts due and payable pursuant to the Existing Credit Agreement and Loan Documents on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement shall have been (Agreement, hereunder or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder)under any Loan Document.
(i) All governmental and third party approvals necessary or, in the reasonable discretion of the The Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries Agent shall have been obtained and be received insurance certificates, endorsements or other appropriate evidence supplied by one or more insurance brokers or insurance companies demonstrating compliance with all insurance requirements set forth in full force and effectSection 5.02 (including, without limitation, Section 5.02(c)).
(j) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f) and (g) of this Section 4.02 and in clauses (b) and (c) of Section 4.01
(k) The Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. PATRIOT Act, that has been reasonably requested by the Administrative Agent at least five Business Days in advance of the Restatement Date.
(l) The Administrative Agent and the Lenders shall have received true and correct copies of a balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the MLP Entity for the twelve-month period ending December 31, 2016, prepared as described in Section 5.04(a).
(m) The Administrative Agent shall have received (i) satisfactory audited a consolidated financial statements balance sheet, prepared on a Pro Forma Basis, of the Borrowers for the two most recent fiscal years ended prior to MLP Entity as of the Restatement Date as acceptable to which such the Administrative Agent and an income statement showing the financial statements are available position of the MLP Entity for the twelve-month period ended on March 31, 2017, and (ii) satisfactory unaudited interim consolidated an updated financial statements of model provided by the Borrowers for each quarterly period ended subsequent MLP Entity, which shall not be materially inconsistent with the prior financial model delivered by the MLP Entity to the date Administrative Agent in connection with the amendment and restatement (except to the extent of any adjustments as may have been agreed between the latest financial statements Borrower and the Administrative Agent).
(n) (i) evidence of flood insurance with respect to each Material Gathering Station Real Property to the extent required by Section 5.02, if any, in form and substance reasonably satisfactory to Administrative Agent, (ii) evidence of flood insurance to the extent required by Section 5.02, if any, with respect to each Restatement Date Mortgage Amendment (or counterpart thereof, supplement or other modification thereto) delivered pursuant to clause Section 5.12(a) and, (iiii) if required by the provisions of this subsection Flood Insurance Laws, policies or certificates of insurance to the extent required by Section 5.02(c) (j) as to which such financial statements are available.the extent customary and obtainable after the use of commercially reasonable efforts);
(ko) The Administrative AgentAgent shall be satisfied that, after giving effect to the initial Borrowings to be made on the Restatement Date, the matters certified to in its capacity as Collateral Agenteach certificate are true. All legal matters in connection with this Agreement, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections other Loan Documents and the consummation of the Borrowers for fiscal years 2013 through 2018Transactions shall be approved by the Administrative Agent and its legal counsel.
Appears in 1 contract
Restatement Date. This Agreement On the Restatement Date:
(a) The Administrative Agent shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to have received a Borrowing Request as required by Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied 2.03 (or waived a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 9.02):2.03).
(ab) The representations and warranties set forth in Article III hereof shall be true and correct in all material respects as of such 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 as of such earlier date).
(c) At the time of and immediately after giving effect to the Restatement Date and upon the making of any Revolver Loans, no Event of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 party hereto either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of such Credit Party or financial institution party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy fax or other electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentthis Agreement.
(be) [Reserved].
(f) The Administrative Agent shall have received documents and certificates relating to the authorization received, on behalf of this Agreement itself and the transactions contemplated hereby by Lenders on the Borrowers and Restatement Date, a written opinion of each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion (addressed to the Administrative Agent and the Lenders) from of (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ Sidley Austin LLP, U.S. special counsel for Holdings and the Credit Parties, Borrowers and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Van Deuren S.C., French special Wisconsin counsel for Manitowoc EMEA Holding SARL Holdings and Manitowoc Holding Asia SASthe Borrowers, in each case (A) dated the Restatement Date, (B) addressed to the Administrative Agent and the Lenders on the Restatement Date and (C) in form and substance reasonably satisfactory to the Administrative Agent. The Borrower Agent and covering such other matters relating to the Loan Documents and the Restatement Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the Borrowers hereby requests such instruct its counsel to deliver such opinions.
(dg) The Administrative Agent shall have received documents in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and certificates relating (iv) below:
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or incorporation, and a certificate as to the organization, existence and good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Borrower and each Subsidiary Guarantor and the authorization such Loan Party as of a recent date from such Secretary of State (or other similar official);
(ii) a certificate of the Transactions director, secretary or assistant secretary or similar officer of each Loan Party dated the Restatement Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or limited partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in form effect on the Restatement Date,
(B) that attached thereto is a true and substance complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Restatement Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party,
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) a certificate of a Responsible Officer of Holdings or the Lead Borrower certifying that as of the Restatement Date (i) all the representations and warranties described in Section 4.01(b) are true and correct to the extent set forth therein and (ii) that as of the Restatement Date, no Default or Event of Default has occurred and is continuing or would result from any Borrowing to occur on the date hereof or the application of the proceeds thereof.
(i) The Collateral and Guarantee Requirement shall have been satisfied, (ii) [reserved], (iii) the Administrative Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties and copies of the financing statements (or similar documents) disclosed by such search and (iv) the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent and its counsel.
that the Liens indicated by such financing statements (eor similar documents) The Borrower shall are either permitted by Section 6.02 or have caused to be delivered to the Administrative Agent insurance certificates been released (or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee authorized for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, release in form and substance acceptable a manner reasonably satisfactory to the Administrative Agent).
(fi) The Lenders shall have received the financial statements, Projections and other financial information referred to in Section 3.05 and Section 3.14.
(j) [Reserved].
(k) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by the Chief Financial Officer of the Lead Borrower.
(l) The Administrative Agent shall have received a certificate, dated all fees payable thereto or to any Lender on or prior to the Restatement Date and signed by and, to the Presidentextent invoiced, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Borrower hereunderLoan Parties hereunder or under any other Loan Document.
(hm) All principalSince December 31, interest2017, fees there shall not have occurred and other amounts owing under there is no circumstance or occurrence that is reasonably likely to have (individually or in the Existing Credit Agreement shall have been (or shall substantially contemporaneously beaggregate) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder)a Material Adverse Effect.
(in) All governmental and third party approvals necessary or, in To the reasonable discretion of extent requested by the Administrative AgentAgent not less than two (2) days prior to the Closing Date, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries Administrative Agent shall have been obtained received, at least one (1) day prior to the Closing Date, all documentation and be in full force other information required by regulatory authorities under applicable “know your customer” and effectanti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(jo) [Reserved].
(p) The Lenders Administrative Agent shall have received a Borrowing Base Certificate prepared as of March 31, 2018.
(iq) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended At least one Business Day prior to the Restatement Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower. Each Agent and each Lender, by delivering its signature page to this Agreement and funding a Loan on the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues be deemed to have Liens creating a first priority security interest in acknowledged receipt of and consented to and approved each Loan Document and each other document required to be approved by any Agent or Lender, as applicable, on the Collateral, subject to Permitted LiensClosing Date.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Restatement Date. This Agreement shall become effective upon, and only upon, On the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):Restatement Date:
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party received, on behalf of itself, the Lenders and each financial institution identified on Schedule 2.01 either the Issuing Bank, a favorable written opinion of (i) a counterpart hereof (andPaul, as applicableWeiss, of a Omnibus Amendment Rifkind, Wharton & Garrison LLP, counsel for t▇▇ Borrowers, substantia▇▇▇ ▇▇ the ▇▇▇▇▇▇ ▇et forth in Exhibit H-1, and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or (ii) written evidence satisfactory Curtis L. Schehr, Esq., General Counsel of the Borrowers, substant▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ect set forth in Exhibit H-2, in each case (A) dated the Restatement Date, (B) addressed to the Issuing Bank, the Administrative Agent, the Collateral Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or shall reasonably request, and the Borrowers hereby request such Reaffirmation Agreement) that counsel to deliver such party has signed a counterpart of such documentopinions.
(b) The Administrative Agent All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall have received documents and certificates relating be reasonably satisfactory to the authorization of this Agreement Lenders, to the Issuing Bank and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent Lenders shall have received an executed legal opinion (addressed received, to the Administrative Agent extent requested, all documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including the Lenders) from (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Parties, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsU.S.
A. Patriot Act.
(d) The Administrative Agent shall have received documents (i) a certificate, dated the Restatement Date and certificates relating signed by the Secretary or Assistant Secretary of the Borrower and Anteon, certifying (A) that except as set forth on any schedule attached thereto, the certificate or articles of incorporation of each Loan Party previously delivered on the First Restatement Date (or such later date on which such person became a Loan Party) have not been amended since the date of the last amendment thereto shown on the certificate of good standing so furnished, (B) that except as set forth on any schedule attached thereto, the by-laws of each Loan Party as in effect and delivered on the First Restatement Date (or such later date on which such person became a Loan Party) have not been amended, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other equivalent body of each Loan Party authorizing the execution, delivery and performance of the Amendment Agreement (including Exhibit A thereto in the form of this Agreement), the Reaffirmation of Guarantee and Security Documents and the other Loan Documents to which such person is a party, as applicable, and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (D) as to the organization, existence incumbency and good standing specimen signature of each Borrower officer executing the Amendment Agreement, the Reaffirmation of Guarantee and each Subsidiary Guarantor Security Documents, or any other Loan Document or any other document delivered in connection therewith on behalf of such Loan Party; (ii) a certificate of another officer as to the incumbency and the authorization specimen signature of the Transactions in form Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above; and substance satisfactory to (ii) such other documents as the Lenders, the Issuing Bank or the Administrative Agent and its counselmay reasonably request.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the BorrowerBorrower and Anteon, confirming compliance as of such date with the conditions precedent set forth in paragraphs (ab), (bc) and (cd) of Section 4.034.01.
(gf) The Lenders, the Administrative Agent and the Arrangers shall have received received, or shall receive substantially simultaneously with the initial Borrowing of the Term Loans, all fees Fees and other amounts due and payable on or prior to the Restatement Date, includingincluding the Amendment Fees (as defined in the Amendment Agreement) and, to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunderBorrowers hereunder or under any other Loan Document.
(g) The Amendment Agreement shall have become effective in accordance with its terms.
(h) All principal, interest, fees The Reaffirmation of Guarantee and other amounts owing under the Existing Credit Agreement Security Documents shall have been (or duly executed by the parties thereto and delivered to the Collateral Agent and shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder).
(i) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.
(i) The Security Documents shall be in full force and effect and each document (including each Uniform Commercial Code financing statement and, subject to the proviso set forth in Section 5.11, each Assignment of Claims Act notice) required by law or reasonably requested by the Administrative Agent or the Collateral Agent to be filed, registered or recorded in order to create or continue in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority (except to the extent otherwise provided therein) security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in the Security Documents shall have been prepared and delivered to the Collateral Agent.
(j) The Collateral Agent shall have received a certificate, dated the Restatement Date and signed by a Responsible Officer of the Borrower, certifying that, except as set forth on any schedule attached thereto the information set forth on the First Restatement Date Perfection Certificate, is complete, correct and accurate as of the Restatement Date.
(k) The Agents shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Agents.
(l) The Existing Term Loans, together with accrued interest thereon, shall have been repaid in full, or shall be repaid in full substantially simultaneously with the initial Borrowing of the Term Loans.
(m) The Borrower shall have accepted for payment, or shall accept for payment substantially simultaneously with the initial Borrowing of the Term Loans, each of the issued and outstanding Senior Subordinated Notes validly tendered (and not withdrawn) pursuant to the Debt Tender Offer (and, if fewer than all the issued and outstanding Senior Subordinated Notes shall have been so purchased, the Senior Subordinated Note Indenture shall have been amended pursuant to the consent solicitation in connection with the Debt Tender Offer).
(n) All letters of credit issued under the Existing Credit Agreement prior to the Restatement Date which have not expired as of such date shall have been canceled or shall have been backstopped as provided in the Amendment Agreement.
(o) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, in each case to the extent failure to obtain such consent or approval will or is reasonably likely to have a Material Adverse Effect, and there shall be no governmental or judicial action, actual or threatened, that has or would have, singly or in the aggregate, a reasonable likelihood of restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby.
(p) The Lenders shall have received a certificate substantially in the form of Exhibit K from the chief financial officer of the Borrower to the effect that, after giving effect to the Credit Events to occur on the date hereof and the Transactions, the Borrower and the Subsidiaries, taken as a whole, will not (i) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and be insolvent, (ii) satisfactory unaudited interim consolidated financial statements of be rendered insolvent by the Borrowers for each quarterly period ended subsequent Indebtedness incurred in connection therewith, (iii) be left with unreasonably small capital with which to the date of the latest financial statements delivered pursuant engage in their business or (iv) have incurred debts beyond their ability to clause (i) of this subsection (j) pay such debts as to which such financial statements are availablethey mature.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Restatement Date. This Agreement shall become effective uponThe obligations of the Tranche A Lenders and the Tranche B Lenders to make Tranche A Loans and Tranche B Loans, respectively, on the Restatement Date, and only uponthe effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party received, on behalf of itself, the Lenders and each financial institution identified on Schedule 2.01 either the Issuing Bank, a favorable written opinion of (i) a counterpart hereof (andthe General Counsel or Assistant General Counsel of the U.S. Borrower, as applicablesubstantially to the effect set forth in Exhibit F-1, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such document.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion (addressed to the Administrative Agent and the Lenders) from (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Parties, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, French counsel for Manitowoc EMEA Holding SARL Holdings and Manitowoc Holding Asia SASthe Borrowers, substantially to the effect set forth in Exhibit F-2, and (iii) each foreign counsel listed on Schedule 4.02(a), substantially to the effect set forth in Exhibit F-3, in each case in form and substance satisfactory (A) dated on or shortly prior to the Restatement Date, (B) addressed to the Issuing Bank, the Administrative Agent. The Borrower Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrowers hereby requests request such counsel to deliver such opinions.
(b) To the extent requested, the Lenders 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 USA PATRIOT Act.
(c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity); (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated on or shortly prior to the Restatement Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Restatement 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 (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrowers, 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 or articles of incorporation (or comparable organizational document) of such Loan Party have 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 any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received documents and certificates relating a certificate, dated on or shortly prior to the organization, existence Restatement Date and good standing of each Borrower and each Subsidiary Guarantor and the authorization signed by a Financial Officer of the Transactions U.S. Borrower, confirming compliance with the conditions precedent set forth in form and substance satisfactory to the Administrative Agent and its counselparagraph (m) of this Section 4.02.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees Fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoicedinvoiced prior to the Restatement Date, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
(f) The Security Documents, including the Reaffirmation Agreement and all other amendments and supplements to the Collateral Agreement required by Section 5.08, shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Restatement Date, and all the outstanding Equity Interests of the U.S. Borrower hereunderand the Subsidiaries (other than Equity Interests of Foreign Subsidiaries with respect to which the U.S. Borrower has used commercially reasonable efforts to satisfy the following conditions) shall have been duly and validly pledged thereunder, to the extent required thereby, to the Collateral Agent for the ratable benefit of the Secured Parties, and certificates representing such Equity Interests, to the extent such Equity Interests are evidenced by certificated securities, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document upon completion of the filings or other actions referred to therein.
(g) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Restatement Date and duly executed by a Responsible Officer of Holdings and the U.S. Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to Holdings, the U.S. Borrower and the Subsidiary Guarantors in the states of organization of such persons as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The Lenders shall have been (or shall substantially contemporaneously be) repaid received the financial statements and opinion referred to in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder)Section 3.05.
(i) All governmental and third party approvals necessary or, in amounts due are outstanding under the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries Existing Company Credit Agreement shall have been obtained and paid in full, or shall be paid in full force simultaneously with the making of the Tranche A Loans and effectthe Tranche B Loans hereunder, the commitments thereunder terminated, and all Guarantees thereof and collateral therefor released and discharged.
(j) The Lenders No action, event, occurrence, development or state of circumstances or facts shall have received (i) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to occurred, since the date of the latest financial statements Merger Agreement, that has had or would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect (as defined in the Merger Agreement).
(k) The waiting period (and any extension thereof) applicable to the Merger under the HSR Act (such term and each other capitalized term used in this paragraph (k) but not otherwise defined in this Agreement having the meaning assigned to such term in the Merger Agreement) and other applicable Antitrust Laws set forth on Section 9.1(b) of the Company Disclosure Schedule shall have been terminated or shall have expired, and all consents, approvals, permits, authorizations and waiting periods under all Antitrust Laws set forth in Section 9.1(b) of the Company Disclosure Schedule, and all consents, approvals, permits, authorizations and waiting periods of Governmental Entities set forth in Section 9.1(b) of the Company Disclosure Schedule to the Merger shall have been obtained or expired, as the case may be, and no temporary restraining order, preliminary or permanent injunction or other judgment, order or decree issued by a court or agency of competent jurisdiction located in the United States or in another jurisdiction outside of the United States in which the Company or any of its subsidiaries, or Holdings or any of its subsidiaries, engages in business activities that prohibits the consummation of the Merger shall have been issued and remain in effect, and no Law shall have been enacted, issued, enforced, entered, or promulgated that prohibits or makes illegal the consummation of the Merger or any of the other material transactions contemplated by the Merger Agreement.
(l) The Transactions shall have been consummated or shall be consummated simultaneously with the making of the Tranche A Loans and the Tranche B Loans on the Restatement Date, in each case in all material respects in accordance with the terms hereof, the terms of the Documents and all material requirements of applicable law, and the Merger Agreement shall not have been modified or waived in any manner adverse to the Lenders in any material respect without the prior written consent of the Administrative Agent. The Administrative Agent shall have received copies of the Merger Agreement and all certificates, opinions and other documents delivered pursuant thereunder, certified by a Financial Officer of the U.S. Borrower as being complete and correct.
(i) The representations and warranties set forth in Sections 3.01, 3.02, 3.03, 3.11 and 3.12 shall be true and correct in all material respects on the Restatement 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, (ii) the condition relating to the accuracy of the representations and warranties relating to the Company in the Merger Agreement shall have been satisfied (without giving effect to any waiver, amendment or other modification to such condition in a manner adverse to the Lenders in any material respect without the consent of the Administrative Agent) and (iii) no Default or Event of Default (other than a Default or Event of Default under paragraph (a) of Article VII resulting from a breach of a representation or warranty not specified in clause (i) of this subsection paragraph (jm)) as to which such financial statements are available.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liensoccurred and be continuing.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Restatement Date. This Agreement shall become effective upon, The amendment and only upon, the satisfaction of each restatement of the following conditions precedent and Existing Credit Agreement in the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder form hereof shall not become effective until the date on which each of the following conditions is satisfied (or waived or deferred in accordance with Section 9.029.02 or the penultimate paragraph of this Section 4.01):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 either (i) from the Borrower, the Administrative Agent, the Collateral Agent, each Issuing Bank and each Lender, including Lenders representing at least the Majority Lenders under and as defined in the Existing Credit Agreement, either (A) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of such Credit Party or financial institution party or (iiB) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic email transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of this Agreement, and (ii) from each party to the Guarantee and Collateral Agreement, either (A) a counterpart of the Guarantee and Collateral Agreement signed on behalf of such documentparty or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or email transmission of a signed signature page of the Guarantee and Collateral Agreement) that such party has signed a counterpart of the Guarantee and Collateral Agreement.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion favorable written opinions (addressed to the Administrative Agent Agent, the Lenders and the LendersIssuing Banks and dated the Restatement Date) from of (i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit PartiesBorrower, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇the General Counsel, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SASan Associate General Counsel or a Senior Legal Counsel of the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests , and covering such counsel other matters relating to deliver such opinionsthe Credit Parties, the Credit Documents or the Transactions as the Administrative Agent or the Majority Lenders shall reasonably request.
(dc) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and Credit Party, the authorization by the Credit Parties of the Transactions and any other legal matters relating to the Borrower, the other Credit Parties, the Credit Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Lenders 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 USA PATRIOT Act.
(e) The Borrower representations and warranties set forth in Article III shall have caused to be delivered to true and correct in all material respects on the Restatement Date and the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable shall have received a certificate signed by a Financial Officer to the Administrative Agentthat effect.
(f) The Borrower and the other Credit Parties shall be in compliance with all the terms and provisions set forth herein and in the other Credit Documents in all material respects on their part to be observed or performed, and at the time of and immediately after the Restatement Date, no Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate signed by a Financial Officer to that effect.
(g) The Administrative Agent shall have received a certificate(i) all fees, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees interest and other amounts due and payable on or prior to, or accrued to, the Restatement Date under the Existing Credit Agreement, (ii) an amount equal to (A) the principal of all outstanding loans and letter of credit disbursements under the Existing Credit Agreement held by lenders under the Existing Credit Agreement that will not be Lenders under this Agreement, or the outstanding loans and letter of credit disbursements of which under the Existing Credit Agreement exceed their Applicable Percentages of the Loans and LC Disbursements to remain outstanding after giving effect to the amendment and restatement of the Existing Credit Agreement in the form of this Agreement on the Restatement Date, minus (B) the amounts to be remitted to such Lenders by the Administrative Agent on the Restatement Date pursuant to the last sentence of Section 2.04(a) and (iii) all fees and other amounts due and payable in connection with the effectiveness of this Agreement, including, to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The Administrative Agent shall have been received (i) a completed Restatement Date Perfection Certificate dated the Restatement Date and signed by a Financial Officer, together with all attachments contemplated thereby, and (ii) the results of a search of the Uniform Commercial Code (or shall substantially contemporaneously beequivalent) repaid filings or registrations made with respect to the Credit Parties in full (other than the deemed re-issuance jurisdictions referred to in paragraph 1 of the Existing Letters Restatement Date Perfection Certificate and copies of Credit hereunder)the financing statements (or similar documents) disclosed by such search.
(i) All governmental The Administrative Agent shall have received from the Borrower and third party approvals necessary or, in each Subsidiary Guarantor (other than the reasonable discretion Excluded Subsidiaries and the Consent Subsidiaries) a counterpart of the Administrative Agent, advisable in connection with the financing contemplated hereby Reaffirmation Agreement duly executed and the continuing operations delivered on behalf of the Borrower or such Subsidiary as a Guarantor and their Subsidiaries shall have been obtained (in the case of each Subsidiary that is a Grantor under the Guarantee and be in full force and effectCollateral Agreement or a Canadian Grantor under any Canadian Security Agreement) a Grantor.
(j) The Lenders Collateral Agent shall have received certificates representing all Capital Stock (other than any uncertificated Capital Stock) pledged pursuant to the Guarantee and Collateral Agreement, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank.
(k) All Uniform Commercial Code financing statements or other personal property security filings and recordations with the United States Patent and Trademark Office, the Canadian Intellectual Property Office and the Federal Aviation Administration required by law or reasonably requested by the Collateral Agent to be filed or recorded to perfect or continue the Liens intended to be created on the Collateral (to the extent such Liens may be perfected or continued by filings under the Uniform Commercial Code as in effect in any applicable jurisdiction or by filings or registrations under applicable Canadian personal property security legislation or by filings with the United States Patent and Trademark Office or the Federal Aviation Administration) shall have been filed or recorded or delivered to the Collateral Agent for filing or recording.
(l) The Collateral Agent shall have received (i) either (x) counterparts of an amended and restated Mortgage with respect to each Mortgaged Property, duly executed and delivered by the record owner of such Mortgaged Property or (y) confirmation satisfactory audited consolidated financial statements to the Collateral Agent, for each applicable Mortgaged Property, that such amendment and restatement is not necessary to reflect its continuing security interests therein, (ii) endorsements issued by the applicable nationally recognized title insurance company to each applicable policy of title insurance insuring the Lien of each such Mortgage as amended and restated as a valid first Lien on the Mortgaged Property described therein, free of any other Liens (other than Liens referred to in such policies of title insurance and acceptable to the Administrative Agent and Liens permitted by Section 6.06), together with such other endorsements as the Collateral Agent or the Majority Lenders may reasonably request, (iii) if any Mortgaged Property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Borrowers for Board, and (iv) such legal opinions and other documents as shall reasonably have been requested by the two most recent fiscal years ended prior Collateral Agent with respect to any such amended and restated Mortgage or Mortgaged Property.
(m) The Administrative Agent shall have received evidence from (i) each “Deposit Account Institution” that is required to be party to an “Account Control Agreement” (as such terms are defined in the Restatement Date as to which such financial statements are available Guarantee and Collateral Agreement) and (ii) satisfactory unaudited interim consolidated financial statements each securities intermediary that is required by Section 4.09 of the Borrowers for each quarterly period ended subsequent Guarantee and Collateral Agreement to be a party to a “Securities Account Control Agreement” (as such term is defined in the date of the latest financial statements delivered pursuant to clause (iGuarantee and Collateral Agreement) of this subsection (j) as to which that such financial statements are availableagreement has been duly executed by all requisite parties and has become effective.
(kn) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders Agent shall have received satisfactory financial projections the Borrowing Base Certificate and the related certificate of a Financial Officer most recently delivered under Section 5.09 of the Borrowers Existing Credit Agreement, as well as copies of the collateral evaluation and appraisal most recently furnished pursuant to Section 5.05(b) of the Existing Credit Agreement. The Collateral Agent may enter into agreements with the Borrower to grant extensions of time for fiscal years 2013 through 2018the perfection of security interests in or the delivery of surveys, title insurance, legal opinions or other documents with respect to particular assets where it determines that perfection cannot be accomplished or such documents cannot be delivered without undue effort or expense by the Restatement Date or any later date on which they are required to be accomplished or delivered under this Agreement or the Security Documents. Any failure of the Borrower to satisfy a requirement of any such agreement by the date specified therein (or any later date to which the Collateral Agent may agree) shall constitute a breach of the provision of this Agreement or the Security Document under which the original requirement was applicable. Without limiting the foregoing, it is anticipated that the actions listed on Annex I to the Disclosure Letter will not have been completed by the Restatement Date, and the Borrower covenants and agrees that each of such actions will be completed by the date specified for such action in such Annex I (or any later date to which the Collateral Agent may agree) and that the Borrower will comply with all of the undertakings set forth in such Annex I. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Date in writing, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions (except as contemplated by the immediately preceding paragraph) shall have been satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2016.
Appears in 1 contract
Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Restatement Date. This Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived or deferred in accordance with Section 9.029.02 or the penultimate paragraph of this Section 4.01):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party the Borrower, the Administrative Agent and each financial institution identified on Schedule 2.01 Lender either (i) a counterpart hereof (and, as applicable, counterparts of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of each such Credit Party or financial institution party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that each such party has signed a counterpart of such documentthis Agreement.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion favorable written opinions (addressed to the Administrative Agent and the LendersLenders and dated the Restatement Date) from of (i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit PartiesBorrower, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇the General Counsel, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SASan Associate General Counsel or a Senior Legal Counsel of the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent. , and covering such other matters relating to the Credit Parties, the Credit Documents or the Transactions as the Administrative Agent or the Majority Lenders shall reasonably request.
(c) The Borrower hereby requests Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to deliver such opinionsthe organization, existence and good standing of each Credit Party, the authorization by the Credit Parties of the Transactions and any other legal matters relating to the Borrower, the other Credit Parties, the Credit Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received documents counterparts of (x) the Lenders Lien Subordination and certificates relating to Intercreditor Agreement and (y) the organizationLien Subordination and Intercreditor Agreement, existence each duly executed and good standing of delivered by each Borrower and each Subsidiary Guarantor and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counselparty thereto.
(e) The Borrower amendment and restatement of the First Lien Agreement shall have caused become effective or shall concurrently become effective in substantially the form thereof most recently posted to be delivered IntraLinks prior to the Administrative Agent insurance certificates or binders naming date hereof with only such changes thereto as shall not be adverse to the Collateral Agent, on behalf of the Secured Creditors, as loss payee for Lenders in any property insurance policies material respect and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to shall have been approved by the Administrative Agent. All conditions to the effectiveness of the amendment and restatement of the First Lien Agreement shall have been satisfied.
(f) The representations and warranties set forth in Article III (including the representation in Section 3.03(a)(iii)) and in the other Credit Documents (insofar as the representations and warranties in such other Credit Documents relate to the transactions provided for herein or to the Collateral securing the Obligations) shall be true and correct in all material respects on the Restatement Date and the Administrative Agent shall have received a certificate signed by a Financial Officer to the effect that the representations and warranties set forth in Article III shall be true and correct in all material respects on the Restatement Date.
(g) The Borrower and the other Credit Parties shall be in compliance with all the terms and provisions set forth herein and in the other Credit Documents in all material respects on their part to be observed or performed, and at the time of and immediately after the Restatement Date, no Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate signed by a Financial Officer to that effect.
(h) The Administrative Agent shall have received a certificateall fees, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees interest and other amounts due and payable on or prior to, or accrued to, the Restatement Date under the Existing Credit Agreement (including any break funding payments payable by the Borrower under Section 2.12(a) of the Existing Credit Agreement to Lenders under the Existing Credit Agreement (determined as if all Loans under the Existing Credit Agreement were being prepaid as of the Restatement Date) as a result of the transactions contemplated by Section 2.01 hereof), and all fees and other amounts due and payable in connection with the effectiveness of this Agreement, including, to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(hi) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The Administrative Agent shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder).
received (i) All governmental a completed Restatement Date Perfection Certificate dated the Restatement Date and third party approvals necessary orsigned by a Financial Officer, together with all attachments contemplated thereby, and (ii) the results of a search of the Uniform Commercial Code (or equivalent) filings or registrations made with respect to the Credit Parties in the reasonable discretion jurisdictions referred to in paragraph 1 of the Administrative Agent, advisable in connection with Restatement Date Perfection Certificate and copies of the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effectstatements (or similar documents) disclosed by such search.
(j) The Lenders Administrative Agent shall have received from the Borrower and each Subsidiary Guarantor (other than the Excluded Subsidiaries and the Consent Subsidiaries) a counterpart of the Reaffirmation Agreement duly executed and delivered on behalf of the Borrower or such Subsidiary as a Guarantor and (in the case of each Subsidiary that is a Grantor under the Guarantee and Collateral Agreement or a Canadian Grantor under any Canadian Security Agreement) a Grantor.
(k) The Collateral Agent (or its sub-agent for perfection) shall have received certificates representing all Capital Stock (other than any uncertificated Capital Stock) pledged pursuant to the Guarantee and Collateral Agreement, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank.
(l) All Uniform Commercial Code financing statements or other personal property security filings and recordations with the United States Patent and Trademark Office, the Canadian Intellectual Property Office and the Federal Aviation Administration required by law or reasonably requested by the Collateral Agent to be filed or recorded to perfect or continue the Liens intended to be created on the Collateral (to the extent such Liens may be perfected or continued by filings under the Uniform Commercial Code as in effect in any applicable jurisdiction or by filings or registrations under applicable Canadian personal property security legislation or by filings with the United States Patent and Trademark Office or the Federal Aviation Administration) shall have been filed or recorded or delivered to the Collateral Agent for filing or recording.
(m) The Collateral Agent shall have received (i) satisfactory audited consolidated financial statements counterparts of an amended and restated Mortgage with respect to each Mortgaged Property, duly executed and delivered by the Borrowers for record owner of such Mortgaged Property, (ii) endorsements issued by the two most recent fiscal years ended prior applicable nationally recognized title insurance company to each applicable policy of title insurance insuring the Lien of each such Mortgage as amended and restated as a valid first Lien on the Mortgaged Property described therein, free of any other Liens (other than Liens referred to in such policies of title insurance and acceptable to the Restatement Date Administrative Agent and Liens permitted by Section 6.06), together with such other endorsements as the Collateral Agent or the Majority Lenders may reasonably request, and (iii) such legal opinions and other documents as shall reasonably have been requested by the Collateral Agent with respect to which any such financial statements amended and restated Mortgage or Mortgaged Property.
(n) The Administrative Agent shall have received evidence from (i) each “Deposit Account Institution” that is required to be party to a “Lockbox Agreement” (as such terms are available defined in the Guarantee and Collateral Agreement) and (ii) satisfactory unaudited interim consolidated financial statements each securities intermediary that is required by Section 5.09 of the Borrowers for each quarterly period ended subsequent Guarantee and Collateral Agreement to be a party to a “Securities Account Control Agreement” (as such term is defined in the date of the latest financial statements delivered pursuant to clause (iGuarantee and Collateral Agreement) of this subsection (j) as to which that such financial statements are availableagreement has been duly executed by all requisite parties and has become effective.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(lo) The Lenders shall have received satisfactory financial projections all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. The Collateral Agent may enter into agreements with the Borrower to grant extensions of time for the perfection of security interests in or the delivery of surveys, title insurance, legal opinions or other documents with respect to particular assets where it determines that perfection cannot be accomplished or such documents cannot be delivered without undue effort or expense by the Restatement Date or any later date on which they are required to be accomplished or delivered under this Agreement or the Security Documents. Any failure of the Borrowers Borrower to satisfy a requirement of any such agreement by the date specified therein (or any later date to which the Collateral Agent may agree) shall constitute a breach of the provision of this Agreement or the Security Document under which the original requirement was applicable. Without limiting the foregoing, it is anticipated that the actions listed on Annex I to the Disclosure Letter will not have been completed by the Restatement Date, and the Borrower covenants and agrees that each of such actions will be completed by the date specified for fiscal years 2013 through 2018such action in such Annex I (or any later date to which the Collateral Agent may agree) and that the Borrower will comply with all of the undertakings set forth in such Annex I. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Date in writing, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to purchase Loans hereunder shall not become effective unless each of the foregoing conditions (except as contemplated by the immediately preceding paragraph) shall have been satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2012 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Restatement Date. This Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived or deferred in accordance with Section 9.029.02 or the penultimate paragraph of this Section 4.01):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or (ii) favorable written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such document.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion opinions (addressed to the Administrative Agent Agent, the Lenders and the LendersIssuing Banks and dated the Restatement Date) from of (i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit PartiesBorrower, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇the General Counsel, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SASan Associate General Counsel or a Senior Legal Counsel of the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent. , and covering such other matters relating to the Credit Parties, the Credit Documents or the Transactions as the Administrative Agent or the Majority Lenders shall reasonably request.
(b) The Borrower hereby requests Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to deliver such opinionsthe organization, existence and good standing of each Credit Party, the authorization by the Credit Parties of the Transactions and any other legal matters relating to the Borrower, the other Credit Parties, the Credit Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Lenders 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 USA PATRIOT Act.
(d) The Administrative Agent shall have received documents counterparts of (x) the Lenders Lien Subordination and certificates relating to Intercreditor Agreement and (y) the organizationLien Subordination and Intercreditor Agreement, existence each duly executed and good standing of delivered by each Borrower and each Subsidiary Guarantor and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counselparty thereto.
(e) The Borrower amendment and restatement of the Second Lien Agreement shall have caused become effective or shall concurrently become effective in substantially the form thereof most recently posted to be delivered IntraLinks prior to the Administrative Agent insurance certificates or binders naming date hereof with only such changes thereto as shall not be adverse to the Collateral Agent, on behalf of the Secured Creditors, as loss payee for Lenders in any property insurance policies material respect and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to shall have been approved by the Administrative Agent. All conditions to the effectiveness of the amendment and restatement of the Second Lien Agreement shall have been satisfied.
(f) The representations and warranties set forth in Article III shall be true and correct in all material respects on the Restatement Date and the Administrative Agent shall have received a certificate signed by a Financial Officer to that effect.
(g) The Borrower and the other Credit Parties shall be in compliance with all the terms and provisions set forth herein and in the other Credit Documents in all material respects on their part to be observed or performed, and at the time of and immediately after the Restatement Date, no Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate signed by a Financial Officer to that effect.
(h) The Administrative Agent shall have received a certificateall fees, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees interest and other amounts due and payable on or prior to to, or accrued to, the Restatement DateDate under the Existing Credit Agreement, and all fees and other amounts due and payable in connection with the effectiveness of this Agreement, including, to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(hi) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The Administrative Agent shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder).
received (i) All governmental a completed Restatement Date Perfection Certificate dated the Restatement Date and third party approvals necessary orsigned by a Financial Officer, together with all attachments contemplated thereby, and (ii) the results of a search of the Uniform Commercial Code (or equivalent) filings or registrations made with respect to the Credit Parties in the reasonable discretion jurisdictions referred to in paragraph 1 of the Administrative Agent, advisable in connection with Restatement Date Perfection Certificate and copies of the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effectstatements (or similar documents) disclosed by such search.
(j) The Lenders Administrative Agent shall have received from the Borrower and each Subsidiary Guarantor (other than the Excluded Subsidiaries and the Consent Subsidiaries) a counterpart of the Reaffirmation Agreement duly executed and delivered on behalf of the Borrower or such Subsidiary as a Guarantor and (in the case of each Subsidiary that is a Grantor under the Guarantee and Collateral Agreement or a Canadian Grantor under any Canadian Security Agreement) a Grantor.
(k) The Collateral Agent shall have received certificates representing all Capital Stock (other than any uncertificated Capital Stock) pledged pursuant to the Guarantee and Collateral Agreement, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank.
(l) All Uniform Commercial Code financing statements or other personal property security filings and recordations with the United States Patent and Trademark Office, the Canadian Intellectual Property Office and the Federal Aviation Administration required by law or reasonably requested by the Collateral Agent to be filed or recorded to perfect or continue the Liens intended to be created on the Collateral (to the extent such Liens may be perfected or continued by filings under the Uniform Commercial Code as in effect in any applicable jurisdiction or by filings or registrations under applicable Canadian personal property security legislation or by filings with the United States Patent and Trademark Office or the Federal Aviation Administration) shall have been filed or recorded or delivered to the Collateral Agent for filing or recording.
(m) The Collateral Agent shall have received (i) satisfactory audited consolidated financial statements counterparts of an amended and restated Mortgage with respect to each Mortgaged Property, duly executed and delivered by the record owner of such Mortgaged Property, (ii) endorsements issued by the applicable nationally recognized title insurance company to each applicable policy of title insurance insuring the Lien of each such Mortgage as amended and restated as a valid first Lien on the Mortgaged Property described therein, free of any other Liens (other than Liens referred to in such policies of title insurance and acceptable to the Administrative Agent and Liens permitted by Section 6.06), together with such other endorsements as the Collateral Agent or the Majority Lenders may reasonably request, and (iii) such legal opinions and other documents as shall reasonably have been requested by the Collateral Agent with respect to any such amended and restated Mortgage or Mortgaged Property.
(n) The Administrative Agent shall have received evidence from (i) each “Deposit Account Institution” that is required to be party to a “Lockbox Agreement” (as such terms are defined in the Guarantee and Collateral Agreement) and (ii) each securities intermediary that is required by Section 5.09 of the Borrowers for Guarantee and Collateral Agreement to be a party to a “Securities Account Control Agreement” (as such term is defined in the two most recent fiscal years ended Guarantee and Collateral Agreement) that such agreement has been duly executed by all requisite parties and has become effective.
(o) The Administrative Agent shall have received a Borrowing Base Certificate and the related certificate of a Financial Officer in accordance with the provisions of Section 5.09 of this Agreement after giving effect to the amendment and restatement hereof on the Restatement Date in replacement of the last monthly Borrowing Base Certificate delivered prior to the Restatement Date. The Collateral Agent may enter into agreements with the Borrower to grant extensions of time for the perfection of security interests in or the delivery of surveys, title insurance, legal opinions or other documents with respect to particular assets where it determines that perfection cannot be accomplished or such documents cannot be delivered without undue effort or expense by the Restatement Date as or any later date on which they are required to be accomplished or delivered under this Agreement or the Security Documents. Any failure of the Borrower to satisfy a requirement of any such agreement by the date specified therein (or any later date to which such financial statements are available and (iithe Collateral Agent may agree) satisfactory unaudited interim consolidated financial statements shall constitute a breach of the Borrowers for each quarterly period ended subsequent provision of this Agreement or the Security Document under which the original requirement was applicable. Without limiting the foregoing, it is anticipated that the actions listed on Annex I to the Disclosure Letter will not have been completed by the Restatement Date, and the Borrower covenants and agrees that each of such actions will be completed by the date specified for such action in such Annex I (or any later date to which the Collateral Agent may agree) and that the Borrower will comply with all of the latest financial statements delivered undertakings set forth in such Annex I. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Date in writing, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions (except as contemplated by the immediately preceding paragraph) shall have been satisfied (or waived pursuant to clause Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2012 (i) of this subsection (j) as to which such financial statements are available.
(k) The Administrative Agentand, in its capacity as Collateral Agentthe event such conditions are not so satisfied or waived, the Total Commitment shall have confirmed that it continues be reduced to have Liens creating a first priority security interest in the Collateral, subject to Permitted Lienszero at such time).
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Restatement Date. This Agreement shall become effective upon, amendment and only upon, the satisfaction of each restatement of the following conditions precedent Original Agreement, and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) hereunder and of the Issuing Bank Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 party hereto either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of such Credit Party or financial institution party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentthis Agreement.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal a favorable written opinion (addressed to the Administrative Agent Agent, the Issuing Banks and the LendersLenders and dated the Restatement Date) from of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Loan Parties, substantially in the form of Exhibit B-1 and (ii) ▇Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, French Canadian counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAScertain of the Loan Parties, substantially in the form of Exhibit B-2, in each case in form and substance satisfactory covering such matters relating to the Loan Parties, this Agreement or the Transactions as the Administrative AgentAgent shall reasonably request. The Borrower Loan Parties hereby requests request such counsel to deliver such opinions.
(c) The Lenders shall have received the financial statements described in Section 3.05.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming shall be reasonably satisfied that (i) the Collateral Agent, on behalf representations and warranties of the Secured CreditorsLoan Parties set forth in the Loan Documents are true and correct in all material respects as of the Restatement Date and (ii) no default, as loss payee for any property insurance policies and additional insured for any general, excess prepayment event or umbrella, automobile, marine creation of Liens under debt instruments or other similar liability policies, in form and substance acceptable agreements to which any Loan Party or Subsidiary is a party would result from the Administrative AgentTransactions.
(f) All material consents and approvals required to be obtained from any Governmental Authority or any other Person in connection with the Transactions shall have been obtained.
(g) Since December 31, 2013, there has been no material adverse change in the business, assets, operations or financial condition of the Guarantors and the Subsidiaries, taken as a whole.
(h) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrowereach Loan Party, confirming compliance as of such date with the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.034.02.
(gi) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower Loan Parties hereunder.
(h) All principal, interestand all fees payable pursuant to the fee letter dated April 30, fees and other amounts owing under 2014 among the Existing Credit Agreement shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder).
(i) All governmental and third party approvals necessary orLoan Parties, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby Agent and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.Citigroup Global Markets Inc.
(j) The Lenders shall have received (i) satisfactory audited consolidated financial statements received, to the extent requested, all documentation and other information reasonably requested by the Lenders or the Administrative Agent under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders of the Borrowers for Restatement Date, and such notice shall be conclusive and binding. Notwithstanding the two most recent fiscal years ended foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available5:00 p.m., New York City time, on May 29, 2014.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Restatement Date. This Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived or deferred in accordance with Section 9.029.02 or the penultimate paragraph of this Section 4.01):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party the Borrower, the Administrative Agent and each financial institution identified on Schedule 2.01 Lender either (i) a counterpart hereof (and, as applicable, counterparts of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of each such Credit Party or financial institution party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that each such party has signed a counterpart of such documentthis Agreement.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion favorable written opinions (addressed to the Administrative Agent and the LendersLenders and dated the Restatement Date) from of (i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit PartiesBorrower, substantially in the form of Exhibit E-1, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇the General Counsel, French counsel for Manitowoc EMEA Holding SARL the Associate General Counsel or an Assistant General Counsel of the Borrower, substantially in the form of Exhibit E-2, and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory covering such other matters relating to the Credit Parties, the Credit Documents or the Transactions as the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsAgent or the Majority Lenders shall reasonably request.
(dc) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and Credit Party, the authorization by the Credit Parties of the Transactions and any other legal matters relating to the Borrower, the other Credit Parties, the Credit Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Obligations shall have been designated by the Borrower as, and shall be, "Designated Senior Obligations" under the Lien Subordination and Intercreditor Agreement.
(e) The Borrower amendment and restatement of the First Lien Agreement shall have caused become effective or shall concurrently become effective in substantially the form thereof most recently posted to be delivered IntraLinks prior to the Administrative Agent insurance certificates or binders naming date hereof with only such changes thereto as shall not be adverse to the Collateral Agent, on behalf of the Secured Creditors, as loss payee for Lenders in any property insurance policies material respect and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to shall have been approved by the Administrative Agent. All conditions to the effectiveness of the amendment and restatement of the First Lien Agreement shall have been satisfied. The Collateral Agent and the collateral agent under the First Lien Agreement shall have reaffirmed application the Lenders Lien Subordination and Intercreditor Agreement in respect of the Obligations and the obligations under the amended and restated First Lien Agreement.
(f) The representations and warranties set forth in Article III and in the other Credit Documents (insofar as the representations and warranties in such other Credit Documents relate to the transactions provided for herein or to the Collateral securing the Obligations) shall be true and correct in all material respects on the Restatement Date and the Administrative Agent shall have received a certificate, dated the Restatement Date and certificate signed by the President, a Vice President or a Financial Officer of to the Borrower, confirming compliance as of such date with effect that the conditions representations and warranties set forth in paragraphs (a), (b) Article III shall be true and (c) of Section 4.03correct in all material respects on the Restatement Date.
(g) The Lenders, the Administrative Agent Borrower and the Arrangers other Credit Parties shall have received be in compliance with all fees the terms and provisions set forth herein and in the other amounts due Credit Documents in all material respects on their part to be observed or performed, and payable on or prior to at the time of and immediately after the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement no Default shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder).
(i) All governmental occurred and third party approvals necessary orbe continuing, in the reasonable discretion of and the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.
(j) The Lenders Agent shall have received (i) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior a certificate signed by a Financial Officer to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are availablethat effect.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Restatement Date. This Agreement shall become effective upon, and only upon, On the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):Restatement Date:
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 either (i) a counterpart hereof (andreceived, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or (ii) written evidence satisfactory to itself, the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such document.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement Lenders and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal Issuing Bank, a favorable written opinion (addressed to the Administrative Agent and the Lenders) from of (i) ▇▇▇▇ ▇▇ & . ▇▇▇▇▇▇▇ LLP, U.S. counsel for Esq., Assistant General Counsel- Corporate of the Credit PartiesBorrower, substantially to the effect set forth in Exhibit E-1, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, French counsel for Manitowoc EMEA Holding SARL Holdings and Manitowoc Holding Asia SASthe Borrower, substantially to the effect set forth in Exhibit E-2, in each case in form and substance satisfactory (A) dated on or shortly prior to the Restatement Date, (B) addressed to the Issuing Bank, the Administrative Agent. The Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Amendment Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower hereby requests request such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders, to the Issuing Bank and to the Administrative Agent and, to the extent requested, the Lenders 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 USA Patriot Act.
(c) The Administrative Agent shall have received a certificate, dated on or shortly prior to the Restatement Date and signed by the Secretary or Assistant Secretary of each of Holdings and the Borrower, certifying that, except as set forth on any schedule attached thereto, (i) the certificate or articles of incorporation of each Loan Party previously delivered on the First Restatement Date (or such later date on which such person became a Loan Party) have not been amended since the date of the last amendment thereto shown on the certificate of good standing so furnished and (ii) the by-laws of each Loan Party as in effect and delivered to the Administrative Agent on the First Restatement Date (or such later date on which such person became a Loan Party) have not been amended.
(d) The Administrative Agent shall have received documents and certificates relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated on or shortly prior to the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions precedent set forth in paragraphs (a), (b) and (c) of Section 4.034.01.
(ge) The Lenders, the Administrative Agent and the Arrangers shall have received all fees Fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoicedinvoiced prior to the Restatement Date, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunderhereunder or under any other Loan Document.
(f) The Amendment Agreement shall have become effective in accordance with its terms.
(g) Each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority (except to the extent otherwise provided therein) security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in the Collateral Agreement shall have been delivered to the Collateral Agent.
(h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The IPO shall have been (or consummated and Holdings shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance have received not less that $135,000,000 of the Existing Letters of Credit hereunder)Net Cash Proceeds therefrom.
(i) All governmental and third party approvals necessary orThe Existing Term Loans, in the reasonable discretion of the Administrative Agenttogether with accrued interest thereon, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and repaid, or shall be in full force and effect.
(j) The Lenders shall have received (i) satisfactory audited consolidated financial statements repaid simultaneously with the initial Borrowing of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are availableTerm Loans hereunder.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Restatement Date. This Amended Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is has been satisfied (or waived in accordance with Section 9.029.05):
(a) The Administrative Agent (or its counsel) shall have received from for the benefit of each Credit Party Lender a signed copy of the favorable written opinion, and each financial institution identified on Schedule 2.01 either addressed to the Lenders, of (i) a counterpart hereof (and▇▇▇▇▇ ▇▇▇▇▇ L.L.P., as applicablecounsel for the Borrower, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents substantially in the form of set forth in Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or B, and (ii) written evidence ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Esq., Deputy General Counsel of the Borrower, substantially in the form set forth in Exhibit C, in each case reasonably satisfactory to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentAgents.
(b) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request on or before the date hereof relating to the organization, existence and good standing of each Obligor, the authorization of this Agreement the Loan Documents and the transactions contemplated hereby by thereby and any other legal matters relating to the Borrowers and each Subsidiary Guarantor foregoing, all in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion counterparts of this Amended Agreement (addressed or facsimile or other evidence satisfactory to the Administrative Agent and of the Lendersexecution of a counterpart hereof) from which, when taken together, bear the signatures of (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for each party hereto that is not a party to the Original Credit Parties, Agreement and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory party to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsOriginal Credit Agreement whose execution and delivery hereof is required by the terms of the Original Credit Agreement for the effectiveness of this Amended Agreement.
(d) The Borrower shall have consummated an issuance of Series D Senior Secured Notes pursuant to a Debt Incurrence for gross cash proceeds of not less than $275,000,000.
(e) The Administrative Agent shall have received documents and certificates relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, including to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(hf) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The Borrower shall have been (or shall substantially contemporaneously be) repaid in full (other prepaid not less than the deemed re-issuance $200,000,000 aggregate principal amount of the Existing Letters Term Loans pursuant to Section 2.09 of the Original Credit hereunder)Agreement, together with accrued interest thereon and applicable prepayment fees.
(ig) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the The Borrower and their Subsidiaries shall have been obtained prepaid all Revolving Loans and be in full force Swingline Loans outstanding under the Original Credit Agreement, together with accrued interest thereon and effectaccrued fees thereunder.
(j) The Lenders shall have received (i) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Restatement Date. This Agreement shall become effective upon, The amendment and only upon, the satisfaction of each restatement of the following conditions precedent and Existing Credit Agreement in the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder form hereof shall not become effective until the date on which each of the following conditions is satisfied (or waived or deferred in accordance with Section 9.029.02 or the penultimate paragraph of this Section 4.01):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party the Borrower, the Administrative Agent, the Collateral Agent and each financial institution identified on Schedule 2.01 Lender, including Lenders representing at least the Majority Lenders under and as defined in the Existing Credit Agreement, either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of such Credit Party or financial institution party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy telecopy, email or other electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentthis Agreement.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion favorable written opinions (addressed to the Administrative Agent and the LendersLenders and dated the Restatement Date) from of (i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit PartiesBorrower, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇the General Counsel, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SASan Associate General Counsel or a Senior Legal Counsel of the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent. Agent and its counsel, and covering such other matters relating to the Credit Parties, the Credit Documents or the Transactions as the Administrative Agent or the Majority Lenders shall reasonably request.
(c) The Borrower hereby requests Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to deliver such opinionsthe organization, existence and good standing of each Credit Party, the authorization by the Credit Parties of the Transactions and any other legal matters relating to the Borrower, the other Credit Parties, the Credit Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received documents and certificates relating to all interest accrued for the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the authorization accounts of the Transactions in form and substance satisfactory Lenders to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Date under the Existing Credit Agreement and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to in connection with the Restatement Dateeffectiveness of this Agreement, including, to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(he) All principal, interest, fees Each Non-Continuing Lender shall have received payment in full of the principal of and other amounts owing interest accrued on each loan made by it under the Existing Credit Agreement and outstanding on the Restatement Date (including any break funding payments payable by the Borrower under Section 2.12 of the Existing Credit Agreement to such Non-Continuing Lender as a result of the Transactions (including the Restatement Transactions)).
(f) The Administrative Agent shall have been received the results of a search of the Uniform Commercial Code (or equivalent) filings or registrations made with respect to the Credit Parties in the jurisdictions referred to in paragraph 1 of the 2018 Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search.
(g) The Administrative Agent shall substantially contemporaneously have received a certificate signed by a Financial Officer certifying that (i) the representations and warranties of the Borrower set forth in Article III are true and correct in all material respects on and as of the Restatement Date; provided that (A) to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date and (B) any representation and warranty that is qualified by “materiality,” “Material Adverse Effect” or similar language is true and correct in all respects as of the date hereof or such earlier date, as the case may be, (ii) repaid on and as of the Restatement Date, at the time of and immediately after giving effect to the Restatement Transactions, no Default or Event of Default shall have occurred and be continuing and (iii) the 2018 Perfection Certificate is true and correct in full all material respects as of December 31, 2017.
(h) The Administrative Agent shall have received from the Borrower and each Subsidiary Guarantor (other than the deemed re-issuance Excluded Subsidiaries and the Consent Subsidiaries) a counterpart of the Existing Letters Reaffirmation Agreement, substantially in the form of Credit hereunder)Exhibit E hereto, duly executed and delivered on behalf of the Borrower or such Subsidiary as a Guarantor and (in the case of each Subsidiary that is a Grantor under the Guarantee and Collateral Agreement or a Canadian Grantor under any Canadian Security Agreement) a Grantor.
(i) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.
(j) The Lenders shall have received (i) satisfactory audited consolidated financial statements all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. The Collateral Agent may enter into agreements with the Borrower to grant extensions of the Borrowers time for the two most recent fiscal years ended prior perfection of security interests in or the delivery of surveys, title insurance, legal opinions or other documents with respect to particular assets where it determines that perfection cannot be accomplished or such documents cannot be delivered without undue effort or expense by the Restatement Date as or any later date on which they are required to be accomplished or delivered under this Agreement or the Security Documents. Any failure of the Borrower to satisfy a requirement of any such agreement by the date specified therein (or any later date to which such financial statements are available and (iithe Collateral Agent may agree) satisfactory unaudited interim consolidated financial statements shall constitute a breach of the Borrowers for each quarterly period ended subsequent provision of this Agreement or the Security Document under which the original requirement was applicable. Without limiting the foregoing, it is anticipated that the actions listed on Annex I to the Disclosure Letter will not have been completed by the Restatement Date, and the Borrower covenants and agrees that each of such actions will be completed by the date specified for such action in such Annex I (or any later date to which the Collateral Agent may agree) and that the Borrower will comply with all of the latest financial statements delivered undertakings set forth in such Annex I. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Date in writing, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions (except as contemplated by the immediately preceding paragraph) shall have been satisfied (or waived pursuant to clause (iSection 9.02) of this subsection (j) as at or prior to which such financial statements are available.
(k) The Administrative Agent5:00 p.m., in its capacity as Collateral AgentNew York City time, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateralon March 30, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Restatement Date. This Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such document.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion (addressed to the Administrative Agent and the Lenders) from (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Parties, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received documents and certificates relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder).
(i) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.
(j) The Lenders shall have received (i) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 2011 through 20182015.
Appears in 1 contract
Sources: Credit Agreement (Manitowoc Co Inc)
Restatement Date. This Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the The obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party party hereto and each financial institution identified on Schedule 2.01 to the other Loan Documents either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security the Loan Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentthe Loan Documents.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal a favorable written opinion (addressed to the Administrative Agent and the LendersLenders and dated the Restatement Date) from (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Parties, and (ii) ▇of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, French counsel General Counsel for Manitowoc EMEA Holding SARL the Borrower and Manitowoc Holding Asia SASthe Guarantors, in each case covering such matters relating to the Borrower, the Guarantors, this Agreement, the other Loan Documents and the Transactions as the Administrative Agent shall reasonably request, such opinions to be in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(dc) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each the Borrower and each Subsidiary Guarantor and the Guarantors, the authorization of the Transactions and any other legal matters relating to the Borrower and the Guarantors, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(fd) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial an Authorized Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.034.02.
(ge) The Administrative Agent shall have received a copy of a letter, in form and substance acceptable to the Administrative Agent, from the Borrower to the Pledgee notifying the Pledgee that this Agreement and the Subsidiary Guaranty shall be “Permitted Debt Agreements” under the Pledge Agreement.
(f) The Lenders, the Administrative Agent and the Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) All material governmental, shareholder and material third party consents and approvals necessary in connection with the Transactions shall have been obtained and all such consents and approvals shall be in force and effect.
(h) The Lenders shall have received (i) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for the 2011, 2010 and 2009 fiscal years and (ii) U.S. GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for each subsequent fiscal quarter ended at least 45 days before the Restatement Date.
(i) All principal, interest, fees and other amounts owing under the Existing Credit Agreement shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit amounts continuing hereunder).
(i) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.
(j) The Lenders Administrative Agent shall have received a consent (ian “Exiting Lender Consent”) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available Credit Agreement from each Exiting Lender under the Existing Credit Agreement in form and (ii) substance satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are availableAdministrative Agent.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders Agent shall have received satisfactory financial projections such other documents as the Administrative Agent, any Lender or their counsel may have reasonably requested. The Administrative Agent shall notify the Borrower and the Lenders of the Borrowers for fiscal years 2013 through 2018Restatement Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on May 31, 2012 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Restatement Date. This The amendments to the Existing Credit Agreement embodied in this Agreement shall become not be effective upon, (in which case the Existing Credit Agreement shall remain in full force and only upon, effect) and the satisfaction of each of Additional B Tranche Term Loans shall not be required to be funded unless and until the Borrower shall have furnished to the Senior Managing Agents the following and unless and until the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):have been satisfied:
(a) The Administrative Agent (or its counsel) Lenders shall have received from a favorable written opinion of each Credit Party and each financial institution identified on Schedule 2.01 either of (i) a counterpart hereof (andthe Vice President, as applicableSecretary and General Counsel of SSCC, of a Omnibus Amendment JSCE, SNC and Reaffirmation of Guaranty and Security Documents the Borrower, substantially in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or I-1, (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such document.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion (addressed to the Administrative Agent and the Lenders) from (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇, U.S. counsel for SSCC, JSCE, SNC and the Credit PartiesBorrower, substantially in the form of Exhibit I-2, and (iiiii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇each local counsel listed on Schedule 5.03(a), French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SASsubstantially in the form of Exhibit I-3, in each case in form and substance satisfactory (A) dated the Restatement Date, (B) addressed to the Senior Managing Agents, the Administrative Agent, the Managing Agents, the Fronting Bank, the Lenders, the Swingline Lender and the Collateral Agent and (C) covering such other matters relating to the Loan Documents and the Transactions as the Senior Managing Agents shall reasonably request. The SSCC, JSCE and the Borrower hereby requests instruct such counsel to deliver such opinions.
(db) All legal matters incident to this Agreement and the Borrowings hereunder shall be satisfactory to the Lenders and to Winston & ▇▇▇▇▇▇, counsel for the Administrative Agent and the Senior Managing Agents.
(c) The Administrative Agent Lenders shall have received documents (i) a copy of the certificate of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and certificates relating a certificate as to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the authorization Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Transactions Secretary or Assistant Secretary of each Loan Party dated the Restatement Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party, as in form effect on the Restatement Date and substance satisfactory 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 such Loan Party, authorizing the execution, delivery and performance of the Loan Documents and Transaction Documents to which such Loan Party is or will be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the Restatement Date, (C) that the certificate of incorporation of such Loan Party has not been amended (other than the amendment to SSCC's certificate of incorporation pursuant to the terms of the Merger Agreement) 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 any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or Winston & ▇▇▇▇▇▇, counsel for the Administrative Agent and its counselthe Senior Managing Agents, may reasonably request.
(ed) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent Lenders shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of each of the BorrowerLoan Parties, confirming compliance as of such date with the conditions precedent set forth in paragraphs (a), (b) and (c) of Section 4.035.01.
(ge) The Lenders, Senior Managing Agents and the Administrative Agent and the Arrangers shall have received all fees Fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(hf) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The Reaffirmation of Guarantee shall have been (or shall substantially contemporaneously be) repaid in full (other than duly executed by the deemed re-issuance of Guarantors and delivered to the Existing Letters of Credit hereunder).
(i) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Collateral Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.
(jg) The Lenders All of the other Loan Documents shall have received be in full force and effect.
(i) satisfactory audited consolidated financial statements Each of the Borrowers modifications to the Mortgages and the other Security Documents, in form and substance satisfactory to the Collateral Agent, relating to the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent, together with assurances satisfactory to the Collateral Agent for the two most recent fiscal years ended prior recordations of the modifications to the Mortgages in the real estate records of all appropriate jurisdictions, (ii) such documentary, intangible or similar taxes with respect to the Collateral and the Mortgaged Properties as may be necessary to maintain the Collateral Agent's perfected security interest (including existing priority) in the Collateral and Mortgaged Properties with respect to the Obligations under this Agreement (including, without limitation, the Additional B Tranche Term Loans funded on the Restatement Date Date) and as may be necessary to which such financial statements are available secure the Additional B Tranche Term Loans, and as the Senior Managing Agents may otherwise reasonably request.
(i) After giving effect to the Transactions on the Restatement Date, (i) no Loan Party or any Subsidiary of any Loan Party shall have any Indebtedness other than (A) Indebtedness under the Loan Documents, (B) the 1993 Senior Notes, (C) the Senior Notes and (D) other Indebtedness permitted under Section 7.01 and (ii) satisfactory unaudited interim consolidated financial statements of Stone and its subsidiaries shall not have any Indebtedness other than (A) Indebtedness under the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.Stone Credit
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Restatement Date. This Amended Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is has been satisfied (or waived in accordance with Section 9.02):9.05)
(a) The Administrative Agent (or its counsel) shall have received from for the benefit of each Credit Party Lender a signed copy of the favorable written opinion, and each financial institution identified on Schedule 2.01 either addressed to the Lenders, of (i) a counterpart hereof (and▇▇▇▇▇ ▇▇▇▇▇ L.L.P., as applicablecounsel for the Borrower, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents substantially in the form of set forth in Exhibit E hereto (the “Reaffirmation Agreement”)) signed on behalf of such Credit Party or financial institution or B, and (ii) written evidence ▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇, Esq., Deputy General Counsel of the Borrower, substantially in the form set forth in Exhibit C, in each case reasonably satisfactory to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentAgents.
(b) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request on or before the date hereof relating to the organization, existence and good standing of each Obligor, the authorization of this Agreement the Loan Documents and the transactions contemplated hereby by thereby and any other legal matters relating to the Borrowers and each Subsidiary Guarantor foregoing, all in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received an executed legal opinion counterparts of this Amended Agreement (addressed or facsimile or other evidence satisfactory to the Administrative Agent and of the Lendersexecution of a counterpart hereof) from which, when taken together, bear the signatures of (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for each party hereto that is not a party to the Original Credit Parties, Agreement and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory party to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsOriginal Credit Agreement whose execution and delivery hereof is required by the terms of the Original Credit Agreement for the effectiveness of this Amended Agreement.
(d) The Administrative Agent shall have received documents and certificates relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, including to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(he) All principal, interest, fees The Borrower shall have prepaid all Revolving Loans and other amounts owing Swingline Loans outstanding under the Existing Original Credit Agreement shall have been (or shall substantially contemporaneously be) repaid in full (other than the deemed re-issuance of the Existing Letters of Credit hereunder)Agreement, together with accrued interest thereon and accrued fees thereunder.
(if) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries The Obligors shall have been obtained delivered appropriate amendments or supplements to add derivative, foreign exchange and be in full force and effect.
(j) The cash management exposures of Lenders shall have received (i) satisfactory audited consolidated financial statements of as secured obligations under the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liens.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.Documents
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Restatement Date. This Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent and the The obligations of the Lenders to make Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is shall be satisfied (or waived in accordance with Section 9.02) (the “Restatement Date”):
(a) The Administrative Agent (or its counsel) shall have received from each Credit Party and each financial institution identified on Schedule 2.01 party hereto either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of such Credit Party or financial institution party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include a telecopy or electronic email transmission of a signed signature page of to this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentthis Agreement.
(b) The Administrative Agent shall have received documents and certificates relating to the authorization of this Agreement and the transactions contemplated hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory an executed written opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Restatement Date) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for Parent, ▇▇▇▇▇ and the Borrower customary for financings of this type.
(c) The Administrative Agent shall have received an executed legal opinion (addressed to such documents and certificates as the Administrative Agent and the Lenders) from (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Credit Parties, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received documents and certificates may reasonably request relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor Loan Party and the authorization of the Transactions in form and substance satisfactory to the Administrative Agent and its counselLoan Documents, as are customary for financings of this type.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(fd) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Responsible Officer of Parent or the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto, if applicable) and if any improvements located on any Mortgaged Property are located in an area determined by the Federal Emergency Management Agency to have special flood hazards, a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 5.09 (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each of which (I) shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (bII) shall name the Collateral Agent, on behalf of the Secured Parties, as additional insured, (III) in the case of flood insurance, shall (x) identify the addresses of each property located in a special flood hazard area, (y) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (cz) provide that the insurer will give the Collateral Agent 30 days’ written notice of Section 4.03cancellation or non-renewal and (IV) shall be otherwise in form and substance satisfactory to the Administrative Agent.
(gf) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, payment or reimbursement or payment of all out fees and expenses (including fees, charges and disbursements of pocket expenses counsel) required to be paid or reimbursed by any Loan Party under the Fee Letter, Commitment Letter or paid by any other Loan Document and for which invoices have been delivered to the Borrower hereunder.
at least three (h3) All principal, interest, fees and other amounts owing Business Days prior to the Restatement Date (which amount may be offset against the proceeds of the Borrowings (if any) under the Existing Credit Agreement shall have been (or shall substantially contemporaneously be) repaid in full (other than Facility on the deemed re-issuance of the Existing Letters of Credit hereunderRestatement Date).
(g) The Collateral and Guarantee Requirement shall have been satisfied to the extent required hereunder and under the other Loan Documents. Except as otherwise provided herein, all actions necessary to establish that the Administrative Agent will have perfected security interests (subject to Permitted Encumbrances) in the Collateral under the Security Documents, shall have been taken. The Administrative Agent shall have received a completed (i) All governmental Guarantee Agreement and third party approvals (ii) Perfection Certificate, each dated the Restatement Date and signed by an executive officer or a Financial Officer of each Loan Party, together with all attachments contemplated thereby. The Administrative Agent shall have received UCC financing statements in appropriate form for filing under the UCC filings with the United States Patent and Trademark Office and United States Copyright Office, if applicable, and such other documents under applicable law in each jurisdiction as may be necessary or appropriate or, in the reasonable discretion opinion of the Administrative Agent, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and their Subsidiaries shall have been obtained and be in full force and effect.
(j) The Lenders shall have received (i) satisfactory audited consolidated financial statements of the Borrowers for the two most recent fiscal years ended prior to the Restatement Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this subsection (j) as to which such financial statements are available.
(k) The Administrative Agent, in its capacity as Collateral Agent, shall have confirmed that it continues desirable to have perfect the Liens creating a first priority security interest in created by the Collateral, subject to Permitted LiensSecurity Documents.
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
Appears in 1 contract
Sources: Credit Agreement (PetroLogistics LP)
Restatement Date. This The amendments to the Original Credit Agreement shall become effective upon, and only upon, the satisfaction of each of the following conditions precedent effected hereby and the obligations of the Lenders to make the Additional Loans (other than Term A-2 Loans, which shall be subject to Section 4.02) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each the Borrower, the Mexico Borrower, the "Required Lenders" (under and as defined in the Original Credit Party Agreement) and each financial institution identified on Schedule 2.01 Lender with a Mexico Term Commitment, Tranche A Term Commitment or Tranche B Term Commitment, either (i) a counterpart hereof (and, as applicable, of a Omnibus Amendment and Reaffirmation of Guaranty and Security Documents in the form of Exhibit E hereto (the “Reaffirmation Agreement”)) this Agreement signed on behalf of such Credit Party or financial institution party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement or such Reaffirmation Agreement) that such party has signed a counterpart of such documentthis Agreement.
(b) The Administrative Agent shall have received documents a favorable written opinion (addressed to the Administrative Agent and certificates the Lenders and dated the Restatement Date) of each of (i) Winston & Stra▇▇, counsel for the Borrower and the Mexico Borrower, substantially addressing the matters set forth in Exhibit B-1, (ii) Laffan, Muesy & Gara▇, ▇▇unsel for the Mexico Borrower, substantially in the form of Exhibit B-2, (▇▇▇) ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & McCa▇▇▇▇, ▇▇ah counsel for the Borrower, substantially in the form of Exhibit B-3 and (iv) to the extent requested by the Administrative Agent, local counsel in each jurisdiction where a Mortgaged Property is located, substantially in a form agreed to by the Administrative Agent, and, in the case of each such opinion required by this paragraph, covering such other matters relating to the authorization of this Agreement Loan Parties, the Loan Documents or the Restatement Transactions as the Administrative Agent shall reasonably request. The Borrower and the transactions contemplated Mexico Borrower hereby by the Borrowers and each Subsidiary Guarantor in form and substance satisfactory request such counsel to the Administrative Agentdeliver such opinions.
(c) The Administrative Agent shall have received an executed legal opinion (addressed to such documents and certificates as the Administrative Agent and the Lenders) from (i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. or its counsel for the Credit Parties, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, French counsel for Manitowoc EMEA Holding SARL and Manitowoc Holding Asia SAS, in each case in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received documents and certificates may reasonably request relating to the organization, existence and good standing of each Borrower and each Subsidiary Guarantor and Loan Party, the authorization of the Restatement Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Borrower shall have caused to be delivered to the Administrative Agent insurance certificates or binders naming the Collateral Agent, on behalf of the Secured Creditors, as loss payee for any property insurance policies and additional insured for any general, excess or umbrella, automobile, marine or other similar liability policies, in form and substance acceptable to the Administrative Agent.
(fd) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance as of such date with the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.034.02.
(ge) The Lenders, the Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out of out-of-pocket expenses required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral Agent shall have received counterparts of the Pledge Agreement signed on behalf of the Borrower hereunderand each Subsidiary Loan Party, together
(a) shall have been taken.
(g) The Collateral Agent shall have received counterparts of the Security Agreement signed on behalf of the Borrower and each Subsidiary Loan Party (other than Blessings and its subsidiaries, if the Merger does not occur on the Restatement Date), together with the following:
(i) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Security Agreement; and
(ii) a completed Perfection Certificate dated the Restatement Date and signed by an executive officer or Financial Officer of the Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate (other than jurisdictions in which a search was undertaken in the name of such Loan Party in connection with the execution of the Original Credit Agreement) and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been released.
(h) All principal, interest, fees and other amounts owing under the Existing Credit Agreement The Collateral Agent shall have been received (or shall substantially contemporaneously bei) repaid in full (other than the deemed re-issuance counterparts of a Mortgage with respect to each Mortgaged Property signed on behalf of the Existing Letters record owner of Credit hereunder)such Mortgaged Property, (ii) a policy or policies of title insurance issued by a nationally recognized title insurance company, insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged Property described therein, free of any other Liens except as permitted by Section 6.03, in form and substance reasonably acceptable to the Collateral Agent, together with such endorsements, coinsurance and reinsurance as the Collateral Agent or the Required Lenders may reasonably request, (iii) copies of all existing surveys and such other information and documents with respect to the Mortgaged Properties as shall be necessary for the aforesaid title insurance policies to be issued without a survey exception and (iv) such other customary documentation with respect to the Mortgaged Properties as the Administrative Agent may reasonably require; provided that (A) with respect to any Mortgaged Property as to which a Mortgage was recorded prior to the Restatement Date, the requirements of this paragraph shall be limited to such supplements, amendments and bring-downs as the Collateral Agent shall request and (B) if the Merger does not occur on the Restatement Date, the requirements of clauses (i) and (ii) above shall not apply to Mortgaged Properties owned by Blessings or any subsidiary thereof until the Merger Date.
(i) All governmental The Administrative Agent shall have received (i) counterparts of the Guarantee Agreement signed on behalf of the Borrower and third party approvals each Subsidiary Loan Party and (ii) counterparts of the Indemnity, Subrogation and Contribution Agreement signed on behalf of the Borrower and each Subsidiary Loan Party; provided that Blessings and its subsidiaries shall be deemed not to be Subsidiary Loan Parties for purposes of this paragraph unless the Merger occurs on the Restatement Date.
(j) The Administrative Agent shall have received evidence satisfactory to it that the insurance required by Section 5.07 is in effect.
(k) The Senior Subordinated Note Documents shall have been amended to the extent necessary orto permit the Restatement Transactions, and such amendment shall be reasonably satisfactory to the Lenders in form and substance.
(l) The Required Lenders shall be satisfied with any change in the reasonable discretion material terms of the Administrative AgentAcquisition, advisable including the material terms and conditions of (i) the Tender Offer, (ii) the Merger and (iii) the Acquisition Agreement and any other agreements entered into in connection with the financing contemplated hereby Restatement Transactions.
(m) All conditions to the acceptance of the shares of Blessings' capital stock pursuant to the Tender Offer shall have been satisfied (without giving effect to any material amendment or waiver that has not been approved by the Required Lenders) and a sufficient number of shares of the Blessings' capital stock shall have been validly tendered and accepted for purchase pursuant to and in accordance with the Tender Offer to permit the Borrower and the continuing operations Acquisition Sub to cause the Merger to occur without the approval of any other stockholder of Blessings.
(n) Either (i) the Merger shall be consummated on the Restatement Date or (ii) there shall not be any further consent, approval, waiver, condition or other material impediment to the consummation of the Merger, other than (x) approval of the Merger by vote of the stockholders (which shall be within the control of the Borrower) of Blessings at a meeting of stockholders, (y) customary filings in the State of Delaware to effect the Merger and (z) the other conditions to the Merger set forth in the Acquisition Agreement.
(o) The Required Lenders shall be satisfied in all material respects with the proposed capital structure of the Borrower and their its Subsidiaries after consummation of the Restatement Transactions (it being agreed that the Required Lenders are satisfied as of the date hereof with the proposed capital structure of the Borrower and its Subsidiaries described in the Term Sheet).
(p) After giving effect to the Restatement Transactions, the Borrower and its Subsidiaries shall not have any outstanding Indebtedness or preferred stock other than Indebtedness permitted by Section 6.01. The terms and conditions of any Indebtedness of Blessings and its subsidiaries to remain outstanding after the Restatement Date shall be reasonably satisfactory in all respects to the Lenders.
(q) The Lenders shall be reasonably satisfied in all respects with the tax position and the contingent tax and other liabilities of, and with any tax sharing agreements involving, the Borrower and its Subsidiaries after giving effect to the Restatement Transactions and the other transactions contemplated hereby, and with the plans of the Borrower with respect thereto (it being understood that the information disclosed by the Borrower to the Administrative Agent prior to the date of the Term Sheet with respect to the foregoing tax matters shall be deemed satisfactory).
(r) All material consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the Restatement Transactions (including the Merger) shall have been obtained obtained, all applicable waiting periods and appeal periods shall have expired, in each case without the imposition of any burdensome conditions, and there shall be in full force and effectno action by any Governmental Authority, actual or threatened, that would restrain, prevent or impose burdensome conditions on the Restatement Transactions.
(js) The Lenders shall have received (i) satisfactory audited consolidated financial statements copies of all existing environmental reports prepared with respect to each parcel of real property and the Borrowers for the two most recent fiscal years ended prior to improvements thereto owned by Blessings or any of its subsidiaries as of the Restatement Date as and any Environmental Liabilities that may be attributable to which such financial statements are available properties or operations thereon and (ii) such other materials relating to Blessings' compliance with Environmental Laws and actual or potential Environmental Liabilities as shall be reasonably specified by the Administrative Agent, all of which shall be satisfactory unaudited interim consolidated financial statements of the Borrowers for each quarterly period ended subsequent to the date of Administrative Agent (it being understood that the latest financial statements delivered pursuant to condition set forth in clause (iii) of this subsection (j) as to which such financial statements are availableabove has been satisfied).
(kt) There shall be no litigation or administrative proceeding that would to have a Material Adverse Effect, or a material adverse effect on the ability of the parties to consummate the Restatement Transactions or the other transactions contemplated hereby. The Administrative AgentAgent shall notify the Borrower and the Lenders of the Restatement Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendments to the Original Credit Agreement that would be effected hereby and the obligations of the Lenders to make the Additional Loans shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on June 30, 1998 (and, in its capacity as Collateral Agentthe event such conditions are not so satisfied or waived, the Original Credit Agreement shall have confirmed that it continues remain in effect without giving effect to have Liens creating a first priority security interest in the Collateral, subject to Permitted Liensany amendments thereto contemplated hereby).
(l) The Lenders shall have received satisfactory financial projections of the Borrowers for fiscal years 2013 through 2018.
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