Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02): (a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement. (b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions. (c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section. (d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation. (e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent. (f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement. (g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02. (h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act. (i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 3 contracts
Sources: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.), Restatement Agreement (Virtu Financial, Inc.)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder This Agreement shall become effective on the date (the “Restatement Effective Date shall not become effective until the date Date”) on which each of the following conditions shall have been satisfied on or prior to such date (which date shall be satisfied (or waived substantially concurrent with the “Effective Date,” as defined in accordance with Section 9.02the Plan of Reorganization):
(ai) The the Parent, GMSC, Arlington, the Borrower, the Administrative Agent (or its counsel) and the Lenders constituting the Required Lenders shall have received from each other party thereto either (i) signed a counterpart hereof (whether the same or different counterparts) and the Subsidiary Guarantors described in clause (x) of the Restatement Agreement definition thereof shall have signed on behalf of such party an acknowledgment hereof (whether the same or (iidifferent counterparts) written evidence satisfactory and shall have delivered the same to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart or, in the case of the Restatement Agreement.Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or facsimile notice (actually received) at such office that the same has been signed and mailed to it;
(bii) The Administrative Agent the Borrower shall have received written opinions (addressed paid to the Administrative Agent and the Lenders all costs, fees and dated expenses (including, without limitation, the reasonable and documented legal fees and expenses of White & Case LLP and maritime counsel and other counsel to the Administrative Agent reasonably acceptable to the Borrower) and other compensation contemplated in connection with this Agreement and the Final DIP/Cash Collateral Order payable to the Administrative Agent and the Lenders in respect of the transactions contemplated by this Agreement to the extent then due and invoiced at least two Business Days prior to the Restatement Effective Date;
(iii) the Borrower shall have paid to the Lenders any interest that has accrued but has not been paid on the Revolving Loans or the Term Loans pursuant to the Final DIP/Cash Collateral Order;
(iv) the Plan of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for Reorganization shall have been confirmed by the Loan Parties, Bankruptcy Court and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as conditions to such matters as effectiveness of the Plan of Reorganization shall have been satisfied or waived in accordance with the terms thereof;
(v) the Administrative Agent may reasonably request shall have received a copy of the duly authorized and executed Other Credit Agreement, which Other Credit Agreement shall be in form and substance reasonably satisfactory to the Administrative Agent and shall be in full force and effect in accordance with its terms;
(vi) (a) the Lead Arranger. Each Equity Investment shall have been received by the Parent and certain of Holdings its Subsidiaries, (b) the Equity Conversion shall have occurred and the Borrower hereby requests such counsels to deliver such opinions.
(c) The the Loans under this Agreement shall have been partially repaid in the amount of $39,649,220 with the proceeds of the Equity Investment;
(vii) all Indebtedness of the Borrower, GMSC, the Parent and its other Subsidiaries under the DIP Credit Agreement, shall have been repaid in full with proceeds of the Equity Investment, together with all fees and other amounts owing thereon, all commitments thereunder shall have been terminated, and all security documentation relating thereto shall have been terminated and released or reassigned, and the Administrative Agent shall have received a certificate of all such releases and reassignments as may have been requested by the Administrative Agent, which releases and reassignments shall be in form and substance reasonably satisfactory to the Administrative Agent;
(viii) the Collateral and Guaranty Requirements with respect to each Loan Party, dated Collateral Vessel shall have been satisfied (including any amendments to the Restatement Effective Date, substantially Security Documents set forth in the form definition of Exhibit G with appropriate insertions, executed by any Responsible Officer Collateral and Guaranty Requirements as are necessary or desirable in the sole discretion of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.Administrative Agent);
(dix) The the Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedthe duly authorized and executed Primary Intercreditor Agreement, which Primary Intercreditor Agreement shall be in form and substance reasonably satisfactory to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature Administrative Agent and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being shall be in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.in accordance with its terms;
(ex) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a copy of the duly authorized and executed Secondary Intercreditor Agreement, which Secondary Intercreditor Agreement shall be in form and substance reasonably satisfactory to the Administrative Agent and shall be in full force and effect in accordance with its terms;
(i) there shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in any other Credit Document shall be true and correct in all material respects both before and after giving effect to the Transaction (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date);
(xii) all Loans converted or continued pursuant to this Agreement shall be in full compliance with all applicable requirements (including without limitation the collateral valuation requirements) of law, including, without limitation, the Margin Regulations and the collateral valuation requirements thereunder, and each Lender in good faith shall be able to complete the relevant forms establishing compliance with the Margin Regulations;
(xiii) after giving effect to the Transaction, there shall be no conflict with, or default under, any material agreement or contractual or other restrictions which is binding for the Borrower or any of its Subsidiaries;
(xiv) the Borrower shall cause to be delivered to the Administrative Agent a solvency certificate from the chief senior financial officer or chief operating officer of the Borrower (x) Parent, in the form of Exhibit Q certifying as J, which shall be addressed to the solvency Administrative Agent and each of the Borrower Lenders and its Subsidiaries on a consolidated basis dated the Restatement Effective Date, setting forth the conclusion that, after giving effect to the Transactions incurrence of all the financings contemplated hereby, the Parent and its Subsidiaries, taken as a whole, and the Borrower and its Subsidiaries, taken as a whole, are not insolvent and will not be rendered insolvent by the incurrence of such indebtedness, and will not be left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature;
(xv) the Administrative Agent shall have received copies of (i) the financial statements referred to in Sections 7.05(a), which financial statements shall be consummated in form and substance reasonably satisfactory to the Administrative Agent and (ii) Cash Flow Projections for the 13-week period beginning on or prior to the Restatement Effective Date in form and (y) as substance reasonably satisfactory to the satisfaction of the conditions set forth in Section 4.02.Lenders;
(hxvi) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to on the Restatement Effective Date, all documentation and other information about the Loan Parties as nothing shall have been occurred since February 28, 2012 (and neither the Administrative Agent nor the Required Lenders shall have become aware of any facts or conditions not previously known to the Administrative Agent or the Required Lenders) which the Administrative Agent or the Required Lenders shall determine is reasonably likely to have a Material Adverse Effect (other than events publicly disclosed prior to the commencement of the Chapter 11 Proceedings, the commencement and continuation of the Chapter 11 Proceeding and the consequences that would reasonably be expected to result therefrom);
(xvii) other than the Chapter 11 Proceedings, there shall be no actions, suits or proceedings pending or threatened (i) against the Credit Parties that challenges, enjoins or prevents this Agreement or any other Credit Document or (ii) which the Administrative Agent shall determine has had, or could reasonably be expected to have, a Material Adverse Effect (other than events publicly disclosed prior to the commencement of the Chapter 11 Proceedings, the commencement and continuation of the Chapter 11 Proceeding and the consequences that would reasonably be expected to result therefrom);
(xviii) the Credit Parties shall have provided, or procured the supply of, the “know your customer” information required pursuant to the PATRIOT Act, in each case as reasonably requested in writing by any Lender or the Administrative Agent at least 10 three Business Days prior to the Restatement Effective Date in connection with its internal compliance regulations thereunder or other information reasonably requested by the Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby;
(xix) all necessary governmental (domestic and foreign) and third party approvals and/or consents in connection with the Loans, the other transactions contemplated hereby and the granting of Liens under the Credit Documents shall have been obtained and remain in effect, and all applicable waiting periods with respect thereto shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of this Agreement or the Lead Arranger that they shall have reasonably determined is required other transactions contemplated by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.Credit Documents or otherwise referred to herein or therein; and
(ixx) The Administrative Agent there shall have received not exist any judgment, order, injunction or other restraint issued or filed or a Borrowing Request requesting hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon this Agreement or the borrowing of other transactions contemplated by the Initial Term LoansCredit Documents or otherwise referred to herein or therein. The Administrative Agent shall notify Holdings, will give the Borrower and each Lender prompt written notice of the Lenders occurrence of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 3 contracts
Sources: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (General Maritime Corp / MI)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder This Agreement shall become effective on the date (the “Restatement Effective Date shall not become effective until the date Date”) on which each of the following conditions shall have been satisfied on or prior to such date (which date shall be satisfied (or waived substantially concurrent with the “Effective Date,” as defined in accordance with Section 9.02the Plan of Reorganization):
(ai) The the Parent, GMSCII, Arlington, the Borrower, the Administrative Agent (or its counsel) and the Lenders constituting the Required Lenders shall have received from each other party thereto either (i) signed a counterpart hereof (whether the same or different counterparts) and the Subsidiary Guarantors described in clause (x) of the Restatement Agreement definition thereof shall have signed on behalf of such party an acknowledgment hereof (whether the same or (iidifferent counterparts) written evidence satisfactory and shall have delivered the same to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart or, in the case of the Restatement Agreement.Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or facsimile notice (actually received) at such office that the same has been signed and mailed to it;
(bii) The Administrative Agent the Borrower shall have received written opinions (addressed paid to the Administrative Agent and the Lenders all costs, fees and dated expenses (including, without limitation, the reasonable and documented legal fees and expenses of White & Case LLP and maritime counsel and other counsel to the Administrative Agent reasonably acceptable to the Borrower) and other compensation contemplated in connection with this Agreement and the Final DIP/Cash Collateral Order payable to the Administrative Agent and the Lenders in respect of the transactions contemplated by this Agreement to the extent then due and invoiced at least two Business Days prior to the Restatement Effective Date;
(iii) the Borrower shall have paid to the Lenders any interest that has accrued but has not been paid on the Revolving Loans pursuant to the Final DIP/Cash Collateral Order;
(iv) the Plan of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for Reorganization shall have been confirmed by the Loan Parties, Bankruptcy Court and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as conditions to such matters as effectiveness of the Plan of Reorganization shall have been satisfied or waived in accordance with the terms thereof;
(v) the Administrative Agent may reasonably request shall have received a copy of the duly authorized and executed Other Credit Agreement, which Other Credit Agreement shall be in form and substance reasonably satisfactory to the Administrative Agent and shall be in full force and effect in accordance with its terms;
(vi) (a) the Lead Arranger. Each Equity Investment shall have been received by the Parent and certain of Holdings its Subsidiaries, (b) the Equity Conversion shall have occurred, (c) the Tranche A Loans under this Agreement shall have been partially repaid in the amount of $35,350,780 with the proceeds of the Equity Investment and (d) all letters of credit issued under the Borrower hereby requests such counsels Original Credit Agreement shall continue as Existing Letters of Credit under this Agreement pursuant to deliver such opinionsSection 3.01(a).
(cvii) The all Indebtedness of the Borrower, GMSCII, the Parent and its other Subsidiaries under the DIP Credit Agreement, shall have been repaid in full with proceeds of the Equity Investment, together with all fees and other amounts owing thereon, all commitments thereunder shall have been terminated, and all security documentation relating thereto shall have been terminated and released or reassigned, and the Administrative Agent shall have received a certificate of all such releases and reassignments as may have been requested by the Administrative Agent, which releases and reassignments shall be in form and substance reasonably satisfactory to the Administrative Agent;
(viii) the Collateral and Guaranty Requirements with respect to each Loan Party, dated Collateral Vessel shall have been satisfied (including any amendments to the Restatement Effective Date, substantially Security Documents set forth in the form definition of Exhibit G with appropriate insertions, executed by any Responsible Officer Collateral and Guaranty Requirements as are necessary or desirable in the sole discretion of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.Administrative Agent);
(dix) The the Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedthe duly authorized and executed Primary Intercreditor Agreement, which Primary Intercreditor Agreement shall be in form and substance reasonably satisfactory to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature Administrative Agent and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being shall be in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.in accordance with its terms;
(ex) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a copy of the duly authorized and executed Secondary Intercreditor Agreement, which Secondary Intercreditor Agreement shall be in form and substance reasonably satisfactory to the Administrative Agent and shall be in full force and effect in accordance with its terms;
(i) there shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in any other Credit Document shall be true and correct in all material respects both before and after giving effect to the Transaction (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date);
(xii) all Loans converted or continued pursuant to this Agreement shall be in full compliance with all applicable requirements (including without limitation the collateral valuation requirements) of law, including, without limitation, the Margin Regulations and the collateral valuation requirements thereunder, and each Lender in good faith shall be able to complete the relevant forms establishing compliance with the Margin Regulations;
(xiii) after giving effect to the Transaction, there shall be no conflict with, or default under, any material agreement or contractual or other restrictions which is binding for the Borrower or any of its Subsidiaries;
(xiv) the Borrower shall cause to be delivered to the Administrative Agent a solvency certificate from the chief senior financial officer or chief operating officer of the Borrower (x) Parent, in the form of Exhibit Q certifying as K, which shall be addressed to the solvency Administrative Agent and each of the Borrower Lenders and its Subsidiaries on a consolidated basis dated the Restatement Effective Date, setting forth the conclusion that, after giving effect to the Transactions incurrence of all the financings contemplated hereby, the Parent and its Subsidiaries, taken as a whole, and the Borrower, Arlington and their respective Subsidiaries, taken as a whole, are not insolvent and will not be rendered insolvent by the incurrence of such indebtedness, and will not be left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature;
(xv) the Administrative Agent shall have received copies of (i) the financial statements referred to in Sections 7.05(a), which financial statements shall be consummated in form and substance reasonably satisfactory to the Administrative Agent and (ii) Cash Flow Projections for the 13-week period beginning on or prior to the Restatement Effective Date in form and (y) as substance reasonably satisfactory to the satisfaction of the conditions set forth in Section 4.02.Lenders;
(hxvi) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to on the Restatement Effective Date, all documentation and other information about the Loan Parties as nothing shall have been occurred since February 28, 2012 (and neither the Administrative Agent nor the Required Lenders shall have become aware of any facts or conditions not previously known to the Administrative Agent or the Required Lenders) which the Administrative Agent or the Required Lenders shall determine is reasonably likely to have a Material Adverse Effect (other than events publicly disclosed prior to the commencement of the Chapter 11 Proceedings, the commencement and continuation of the Chapter 11 Proceeding and the consequences that would reasonably be expected to result therefrom);
(xvii) other than the Chapter 11 Proceedings, there shall be no actions, suits or proceedings pending or threatened (i) against the Credit Parties that challenges, enjoins or prevents this Agreement or any other Credit Document or (ii) which the Administrative Agent shall determine has had, or could reasonably be expected to have, a Material Adverse Effect (other than events publicly disclosed prior to the commencement of the Chapter 11 Proceedings, the commencement and continuation of the Chapter 11 Proceeding and the consequences that would reasonably be expected to result therefrom);
(xviii) the Credit Parties shall have provided, or procured the supply of, the “know your customer” information required pursuant to the PATRIOT Act, in each case as reasonably requested in writing by any Lender or the Administrative Agent at least 10 three Business Days prior to the Restatement Effective Date in connection with its internal compliance regulations thereunder or other information reasonably requested by the Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby;
(xix) all necessary governmental (domestic and foreign) and third party approvals and/or consents in connection with the Loans, the other transactions contemplated hereby and the granting of Liens under the Credit Documents shall have been obtained and remain in effect, and all applicable waiting periods with respect thereto shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of this Agreement or the Lead Arranger that they shall have reasonably determined is required other transactions contemplated by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.Credit Documents or otherwise referred to herein or therein; and
(ixx) The Administrative Agent there shall have received not exist any judgment, order, injunction or other restraint issued or filed or a Borrowing Request requesting hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon this Agreement or the borrowing of other transactions contemplated by the Initial Term LoansCredit Documents or otherwise referred to herein or therein. The Administrative Agent shall notify Holdings, will give the Borrower and each Lender prompt written notice of the Lenders occurrence of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 3 contracts
Sources: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (General Maritime Corp / MI)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on and of the Restatement Effective Date Issuing Banks to issue Letters of Credit under this Amended and Restated Credit Agreement shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) counsel shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the Lenders authorization of the Transactions and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for any other legal matters relating to the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesDocuments or the Transactions, as to such matters as the Administrative Agent may reasonably request and all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsits counsel.
(c) The Administrative Agent shall have received a certificate of Reaffirmation Agreement, in form and substance satisfactory to the Administrative Agent, duly executed by each Loan Party, dated pursuant to which each Loan Party shall consent to this Agreement and the Restatement Effective Date, substantially amendments to the Existing Credit Agreement effected hereby and acknowledge that the Guarantee Agreement remains in full force and effect in accordance with its terms and constitutes a guarantee of the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this SectionObligations.
(d) The Administrative Agent shall have received a copy favorable written opinion (addressed to the Agents, the Lenders and the Issuing Banks and dated the Restatement Effective Date) of each of (i) each Organizational Document of each Loan Party certifiedWachtell, to Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the extent applicable, as of a recent date by the applicable Governmental AuthorityCompany, (ii) signature in-house counsel for the Company and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of local counsel in each jurisdiction in which a Loan Party approving is organized and authorizing the executionlaws of which are not covered by the opinion referred to in clause (i) above, delivery in each case in form and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (substance reasonably satisfactory to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationAdministrative Agent.
(e) The Administrative Agent shall have received upfront fees from a certificate, dated the Borrower for Restatement Effective Date and signed by a Financial Officer, confirming compliance with the account of conditions set forth in Section 4.02(a) (without giving effect to the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower parenthetical therein) and the Administrative AgentSection 4.02(b).
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or all fees and other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower amounts due and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated payable on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, extent invoiced at least five two Business Days prior to the Restatement Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Company under the Commitment Letter, any fee letter referred to therein or this Agreement.
(g) On the Restatement Effective Date, all interest, fees and other amounts accrued for the accounts of the Lenders and Issuing Banks under the Existing Credit Agreement shall have been or shall be paid in full.
(h) Each Lender shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior required to the Restatement Effective Date be obtained by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities such Lender under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Expedia, Inc.), Credit Agreement (Expedia, Inc.)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date This Agreement shall not become effective until on and as of the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto Borrower and the Required Lenders either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowers, the authorization of the Transactions and any other legal matters relating to the Borrowers, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and the Lenders and its counsel.
(c) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the U.S. Borrower, confirming that (i) the representations and warranties of the Borrowers set forth in the Loan Documents are true and correct on and as of the Restatement Effective Date and (ii) after giving effect to the amendments contained herein, no Default has occurred and is continuing.
(d) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, (i) to the extent invoiced, reimbursement or payment of all out‑of‑pocket expenses required to be reimbursed or paid by the U.S. Borrower hereunder and (ii) all fees payable pursuant to the Fee Letter.
(e) The Administrative Agent shall have received a legal opinion of (i) in-house counsel to the Borrowers, addressing such matters as the Administrative Agent may request, and (ii) ▇▇▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for to the Administrative Agent, addressing the enforceability of the Loan PartiesDocuments, as to such matters as the Administrative Agent may reasonably request and in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsAgent.
(cf) The All governmental and third party consents and approvals necessary in connection with this Agreement and the other Loan Documents and the transactions contemplated hereby shall have been obtained and be in full force and effect; and the Administrative Agent shall have received a certificate of each Loan Partycertificate, dated the Restatement Effective DateDate and signed by the President, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible a Vice President or a Financial Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, U.S. Borrower with respect to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loansforegoing. The Administrative Agent shall notify Holdings, the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Miller Herman Inc), Credit Agreement (Miller Herman Inc)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date This Agreement shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.0210.02):
(a) The Administrative Agent (or its counsel) shall have received from each of the Borrower, the other party thereto Loan Parties, the Required Lenders and the Administrative Agent either (i) a counterpart of the Amendment and Restatement Agreement Agreement, the Subsidiary Guaranty, and Notes in favor of each Lender requesting a Note at least three (3) Business Days prior to the Restatement Effective Date signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this AgreementAgreement or such Loan Document) that such party has signed a counterpart of the Amendment and Restatement AgreementAgreement or such Loan Document.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Borrower and the other Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory acceptable to the Administrative Agent and the Lead ArrangerAgent. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received the following items from the Borrower:
(i) a certificate of good standing for each Loan Party from the state of organization of such Loan Party, certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Restatement Effective Date;
(ii) a copy of the formation document of each Loan Party, together with all amendments thereto, certified as of a recent date by the appropriate governmental officer and dated not more than thirty (30) days prior to the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed Date and certified by any Responsible Officer an officer of such Loan Party;
(iii) incumbency certificates, executed by officers of each Loan Party, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Loan Party (and to make borrowings hereunder on behalf of the Borrower, in the case of the Borrower), upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(iv) copies, certified by a Secretary or an Assistant Secretary of each Loan Party of the resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for the Administrative Agent) authorizing the Borrowings provided for herein, with respect to the Borrower, and including or attaching the documents referred execution, delivery and performance of the Loan Documents to in paragraph be executed and delivered by the Loan Parties; and
(dv) the most recent financial statements of this Sectionthe Borrower.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature all fees and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving other amounts due and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory payable to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, extent invoiced at least five 3 Business Days prior to the Restatement Effective Date, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(e) All Indebtedness under the Existing Credit Agreement, together with all interest and all other amounts due and payable with respect thereto, shall be paid in full, and the commitments in respect of such Indebtedness shall be permanently terminated, and the Borrower shall have entered into, or will enter into substantially contemporaneously with the effectiveness of this Agreement, the New Credit Agreement.
(f) The Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing by the Administrative Agent or such Lender at least 10 Business Days 7 days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation limitation, the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Cooper Companies Inc), Amendment and Restatement Agreement (Cooper Companies Inc)
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto Term A-1 Lender and each Deferred Term A Lender, in each case, set forth on Schedule 2.01, the Required Lenders, each Borrower, and the Administrative Agent, either (i) a counterpart of (or, in the Restatement case of the Lenders, a consent to) this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of (or, in the Restatement case of the Lenders, a consent to) this Agreement. Each Term A-1 Lender and each Deferred Term A Lender, by submitting a consent to the Pro Rata Extension Offer, dated April 15, 2020, has consented to this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent in connection with the transactions contemplated by the Restatement to ensure the continued validity, enforceability and priority of the Lenders Loan Documents after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and dated other documents as the Administrative Agent may have reasonably requested in connection therewith.
(c) All accrued interest and fees payable hereunder through the Restatement Effective Date shall have been paid.
(d) The Administrative Agent shall have received from the Company an upfront fee payable for the account of each Term A-1 Lender and each Deferred Term A Lender, in each case, set forth on Schedule 2.01 equal to 0.25% of the aggregate principal amount of such Lender’s Existing Loans outstanding immediately prior to the Restatement Effective Date.
(e) The Administrative Agent shall have received (or be reasonably satisfied that it will receive promptly after the funding of ▇Loans on the Restatement Effective Date), on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of (i) P▇▇▇, Weiss, Rifkind, ▇W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as (ii) Walkers (Bermuda) Limited, Bermuda counsel for the Loan Parties, (iii) M▇▇▇▇ ▇▇▇▇▇ JSM, M▇▇▇▇▇▇▇ Islands counsel for the Loan Parties and (iv) M▇▇▇▇ ▇▇▇▇▇, maritime counsel for the Loan Parties, in each case (A) dated the Restatement Effective Date, (B) addressed to such matters as each Issuing Bank, the Administrative Agent, the Collateral Agent may reasonably request and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead Arranger. Each of Holdings and Loan Documents as the Borrower hereby requests such counsels to deliver such opinionsAdministrative Agent shall reasonably request.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, Party dated the Restatement Effective DateDate and certifying:
(i) a copy of the certificate or articles of incorporation, substantially in the form certificate of Exhibit G with appropriate insertionslimited partnership, executed by any Responsible Officer certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, and including or attaching the documents referred to (1) if available from an official in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedsuch jurisdiction, to the extent applicable, certified as of a recent date by the applicable Governmental AuthoritySecretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) signature and incumbency certificates a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of the Responsible Officers such jurisdiction) of each such Loan Party executing the Loan Documents to which it is as of a party, recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors and/or similar (or equivalent governing bodies body) of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified dated as of the Restatement Effective Date by its secretaryto which such person is a party and, an assistant secretary in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or a Responsible Officer as being amended and are in full force and effect without modification or amendment, and on the Restatement Effective Date,
(ivv) a good standing certificate (as to the extent such concept exists) from the applicable Governmental Authority incumbency and specimen signature of each officer executing any Loan Party’s jurisdiction of incorporation, organization Document or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans any other document delivered in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed connection herewith on behalf of such party or Loan Party, and
(iivi) written evidence satisfactory as to the Administrative Agent (which may include facsimile absence of any pending proceeding for the dissolution or other electronic transmission liquidation of a signed counterpart such Loan Party or, to the knowledge of a Reaffirmation Agreement) that such party has signed a counterpart person, threatening the existence of a Reaffirmation Agreement.such Loan Party;
(g) The Administrative Agent Lenders shall have received a solvency certificate from the chief financial officer or chief operating officer of the Borrower (x) substantially in the form of Exhibit Q certifying as to the solvency C and signed by a Financial Officer of the Borrower and its Subsidiaries on a consolidated basis after giving effect Company.
(h) JPMorgan Chase Bank, N.A. shall have received all fees payable thereto or to the Transactions to be consummated any Lender on or prior to the Restatement Effective Date and (y) as and, to the satisfaction extent invoiced at least three Business Days prior to the Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, A▇▇▇▇▇▇ (Bermuda) Limited, H▇▇▇▇ & J▇▇▇▇▇▇ and W▇▇▇▇▇, ▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the conditions set forth in Section 4.02Loan Parties hereunder or under any Loan Document.
(hi) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five three Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActPATRIOT Act that has been requested by the Administrative Agent in writing at least ten Business Days prior to the Restatement Effective Date and (ii) to the extent a Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to each Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) The On and as of the Restatement Effective Date, the representations and warranties of the Borrower and each other Loan Party set forth in Sections 4.01(b) and 4.01(c) hereof shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) and (ii) the Administrative Agent shall have received a Borrowing Request requesting the borrowing certificate from a Responsible Officer of the Initial Borrower certifying as to the matters set forth in Sections 4.01(b) and 4.01(c) hereof.
(k) The Company shall have consummated one or more debt or equity financings (other than debt secured by a Lien on the Collateral secured on an equal priority basis with the Liens securing the Obligations) not prohibited by the terms of the Loan Documents, resulting in at least $1.0 billion of aggregate gross proceeds to the Company and/or its subsidiaries; provided that (i) the final maturity date or mandatory redemption date of any such debt or equity shall be no earlier than the Revolving Facility Maturity Date or the Term Loans. The Administrative Agent A Loan Maturity Date and (ii) in the case of any debt financings, (a) such debt shall notify Holdingsnot be subject to covenants, events of default, Subsidiary guarantees and other terms (other than interest rate and redemption premiums) that, taken as a whole, are more restrictive to the Company and its Subsidiaries than the terms of the Senior Unsecured Notes Documents (or if more restrictive, the Borrower Loan Documents shall be amended to contain such more restrictive terms (which amendments shall automatically occur)), (b) such debt shall not be subject to any financial maintenance covenants and (c) such debt shall have a weighted average life to maturity greater than the Lenders remaining weighted average life to maturity of the outstanding Revolving Facility Loans and Term A Loans.
(i) On the Restatement Effective Date, the Collateral Agent shall have received (a) counterparts of each Amendment to Vessel Mortgage in respect of any M▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel duly executed and delivered by the registered owner of such Mortgaged Vessel and the Mortgage Trustee suitable for recordation with the central office of the Maritime Administrator for the Republic of the M▇▇▇▇▇▇▇ Islands in New York City (the “Maritime Administrator’s Office”), (b) evidence that each Amendment to Vessel Mortgage in respect of any M▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel has been (or will, promptly following the Restatement Effective Date, be) duly registered with the Maritime Administrator’s Office in accordance with the laws of the Republic of the M▇▇▇▇▇▇▇ Islands and such notice other evidence that the Mortgage Trustee may deem necessary and that all registration fees in connection therewith have been duly paid; (ii) On or promptly following the Restatement Effective Date, a Certificate of Ownership and Encumbrances issued by the Maritime Administrator’s Office stating that such M▇▇▇▇▇▇▇ Islands flagged Mortgage Vessel is owned by the Subsidiary Guarantor and showing that there are of record no other liens or encumbrances on such M▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel except the Vessel Mortgage as amended by the Amendment in favor of the Mortgage Trustee; (iii) Such other documents, including any consents, agreements or confirmation of third parties as may be required under any Amendment to the Mortgages in respect of the M▇▇▇▇▇▇▇ Islands flagged Mortgage Ships or otherwise as the Collateral Agent or the Mortgage Trustee may reasonably request; and (iv) the Administrative Agent shall have received (or be reasonably satisfied that it will received promptly after the funding of the Loans on the Restatement Effective Date) a favorable opinion of M▇▇▇▇ B▇▇▇▇, ▇▇▇▇▇▇▇▇ Islands counsel to the Loan Parties. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be conclusive deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Restatement Effective Date specifying its objection thereto and bindingsuch Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 2 contracts
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Restatement Effective Date. (a) The obligations effectiveness of the Lenders amendment and restatement of the Original Credit Agreement in the form of this Agreement is subject to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):precedent:
(ai) The Administrative Agent (or its counsel) shall have received from the Borrower, the Guarantors, each other party thereto Lender, each Issuing Bank, the Administrative Agent and the Swingline Lender either (ix) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiy) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart of this Agreementsignature page) that such party has signed a counterpart of the Restatement this Agreement.
(bii) The Administrative Agent shall have received written opinions an opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇each of (x) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesBorrower, as to such matters as substantially in the Administrative Agent may reasonably request form of Exhibit B-6 and in form and substance reasonably satisfactory (y) ▇▇▇ ▇▇▇▇▇▇▇▇▇, internal counsel to the Administrative Agent and Borrower, substantially in the Lead Arranger. Each form of Holdings and the Borrower hereby requests such counsels to deliver such opinionsExhibit B-7.
(ciii) The Administrative Agent shall have received a certificate of the Secretary of each Credit Party relating to the organization, existence and good standing of each Loan Party, dated the Restatement authorization of this Agreement, such Credit Party’s board of directors (or equivalent) and matters pertaining to dissolution and liquidation, in substantially the same form as the Secretary’s certificates delivered in connection with the Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer dated as of the Borrower Restatement Effective Date, and signed by a Vice President or Financial Officer of the Borrower, certifying that (x) the representations and warranties set forth in Article 3 of this Agreement are true (or, in the form case of Exhibit Q certifying any representation and warranty that is not by its express terms limited by a materiality or “Material Adverse Effect” exception or qualifier, true in all material respects) as to the solvency of the Borrower and its Subsidiaries on a consolidated basis Restatement Effective Date, (y) after giving effect to the Transactions to be consummated on Restatement Transactions, no Default or prior to the Restatement Effective Date Event of Default has occurred and is continuing and (yz) as to the satisfaction of the conditions set forth in this Section 4.024.03 have been satisfied on and as of the Restatement Effective Date.
(hv) The Administrative Agent and the Lead Arranger shall have receivedreceived payment from the Borrower, at least five Business Days prior for the account of each Lender that executes and delivers a counterpart signature page to this Agreement an upfront fee in an amount separately agreed to in writing and payable on the Restatement Effective Date (upon the satisfaction of all other conditions for the occurrence thereof), in immediately available funds and, once paid, such fee or any part thereof shall not be refundable.
(vi) The Borrower shall have paid all invoiced fees and other amounts due and payable to the Lender Parties on or before the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior including, to the Restatement Effective Date by extent invoiced, all out-of-pocket expenses of the Administrative Agent (or any of its Affiliates) (including fees, charges and disbursements of counsel to the Lead Arranger that they shall have reasonably determined is Administrative Agent) required to be reimbursed or paid by regulatory authorities the Borrower under applicable “know your customer” the Loan Documents, together with all other fees separately agreed to in writing by the Borrower and anti-money laundering rules and regulations, including without limitation the USA Patriot ActAdministrative Agent (or any of its Affiliates).
(ivii) Since December 31, 2010, there has been no change, occurrence or development that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.
(viii) The Administrative Agent shall have received a Borrowing Request Note for the account of each Lender requesting a Note to be delivered in connection with the borrowing of Restatement Effective Date. Promptly after the Initial Term Loans. The Restatement Effective Date, the Administrative Agent shall notify Holdings, the Borrower and the Lenders of the occurrence of the Restatement Effective Date, and such notice shall be conclusive and binding.
(b) It is the intention of each of the parties hereto (including each Guarantor) that the Original Credit Agreement be amended and restated so as to preserve the perfection and priority of all security interests securing indebtedness and obligations under the Original Credit Agreement and the guarantees thereof and all Debt and obligations of the Credit Parties hereunder and thereunder shall be secured by the Security Documents and that this Agreement does not constitute a novation of the obligations and liabilities existing under the Original Credit Agreement. In addition, each of the other Loan Documents shall continue in full force and effect and, from and after the Restatement Effective Date, all references to the “Credit Agreement” contained therein shall be deemed to refer to this Agreement.
(c) All schedules to the Original Credit Agreement are amended and restated in the forms attached hereto, and such schedules will thereafter be schedules to this Agreement.
(d) Except as set forth below, all exhibits to the Original Credit Agreement, in the forms thereof immediately prior to the Restatement Effective Date, will continue to be exhibits to this Agreement. In addition, new Exhibits B-6 and B-7 in the forms of Exhibits B-6 and B-7 attached hereto shall be added as exhibits to this Agreement.
(e) The changes to the definitions of “Applicable Rate” and “Available Net Income Basket Amount” in Section 1.01 of this Agreement effected pursuant to the Restatement Transactions shall apply and be effective on and after the Restatement Effective Date. The definitions of “Applicable Rate” and “Available Net Income Basket Amount” in Section 1.01 of the Original Credit Agreement shall apply and be effective for the period ending on, but not including, the Restatement Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Cloud Peak Energy Resources LLC), Credit Agreement (Cloud Peak Energy Resources LLC)
Restatement Effective Date. The Without affecting the rights of Allied Waste or any Restricted Subsidiary hereunder at all times prior to the Restatement Effective Date, the amendment and restatement of the Original Credit Agreement in the form hereof and obligations of the Lenders to make Loans and acquire participations in Letters of Credit, the obligations of Tranche A Lenders to fund their Tranche A Credit-Linked Deposits and the obligations of an Issuing Bank to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until on the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The following documents, each dated the Restatement Effective Date (unless otherwise specified) are received by the Administrative Agent (or its counsel) shall have received from each other party thereto either in form and substance satisfactory to the Initial Lenders:
(i) for Allied Waste, the Borrower and each other Material Loan Party, a counterpart copy of the Restatement Agreement signed on behalf organizational documents, as amended and in effect, of such party Material Loan Party certified (as of a date reasonably close to the Restatement Effective Date) by the Secretary of State of the jurisdiction of organization of such Material Loan Party; a certificate from such Secretary of State dated as of a date reasonably close to the Restatement Effective Date as to the good standing of and organizational documents filed by such Material Loan Party; and evidence from each Material Loan Party that it is qualified to do business in each jurisdiction where such qualification is required and where the failure so to qualify could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(ii) written evidence satisfactory for each of Allied Waste, the Borrower and each other Material Loan Party, a certificate of the Secretary or an Assistant Secretary of such Material Loan Party, dated the Restatement Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or operating or partnership agreement, where applicable) of such Material Loan Party as amended and in effect at all times from the date on which the resolutions referred to in clause (B) were adopted to and including the date of such certificate, (B) that attached thereto is a true and complete copy of resolutions (or consent by members or partners, where applicable, to the extent required) duly adopted by the board of directors (or members or partners, where applicable) of such Material Loan Party authorizing the execution, delivery and performance of such of the Loan Documents to which such Material Loan Party is or is intended to be a party and the extensions of credit hereunder, and that such resolutions (or consent by members or partners, where applicable, to the extent required) have not been modified, rescinded or amended and are in full force and effect, (C) that the organizational documents of such Material Loan Party have not been amended since the date of the certification thereto furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer (or member or partner, where applicable) of such Material Loan Party executing such of the Loan Documents to which such Material Loan Party is intended to be a party and each other document to be delivered by such Material Loan Party from time to time in connection therewith (and the Administrative Agent and each Lender may conclusively rely on such certificate until it receives notice to the contrary in writing from such Material Loan Party); and
(which may include facsimile iii) for each Material Loan Party, a certificate of another officer (or other electronic transmission member or partner, where applicable) of a signed counterpart of this Agreement) that such party has signed a counterpart Material Loan Party, dated the Restatement Effective Date, as to the incumbency and specimen signature of the Restatement Agreement.Secretary or Assistant Secretary, as the case may be, of such Material Loan Party;
(b) The Administrative Agent shall have received written opinions the Security Documents duly executed by each of the intended parties thereto, together with:
(addressed to i) such appropriately completed copies of Uniform Commercial Code financing statements as the Administrative Agent or any Lender shall have requested covering the Collateral described therein;
(ii) documents for recordation and filing of or with respect to such Security Documents that the Lenders and Administrative Agent or any Lender may deem reasonably necessary or desirable in order to perfect the Liens created thereby;
(iii) the stock certificates, if any, required to be delivered pursuant to such Security Documents with respect to each Material Loan Party, each accompanied by undated stock powers executed in blank;
(iv) completed Perfection Certificates dated the Restatement Effective DateDate and signed by an executive officer of the Borrower or a Financial Officer, together with all attachments contemplated thereby.
(c) The Administrative Agent shall have received a legal opinion of ▇▇▇▇, Weiss, Rifkind, ▇(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as in substantially the Administrative Agent may reasonably request form of Exhibit K-1 and in form and substance otherwise reasonably satisfactory to the Administrative Agent Initial Lenders and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of Allied Waste, in substantially the Lead Arranger. Each form of Holdings Exhibit K-2 and otherwise reasonably satisfactory to the Borrower hereby requests such counsels to deliver such opinions.Initial Lenders;
(cd) The Administrative Agent Initial Lenders shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible a Financial Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.that:
Appears in 2 contracts
Sources: Credit Agreement (Allied Waste Industries Inc), Credit Agreement (Allied Waste Industries Inc)
Restatement Effective Date. The Without affecting the rights of the Borrower or any Subsidiary hereunder at all times prior to the Restatement Effective Date, the amendment and restatement of the Original Agreement in the form hereof and the obligations of the Lenders to make Loans and acquire participations in Letters of Credit and Swingline Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of Vorys, ▇▇▇▇, Weiss, Rifkind▇, ▇▇▇▇▇▇▇ & ▇▇▇and ▇▇▇▇▇ LLP, New York counsel for the Borrower, acceptable to the Administrative Agent, substantially in the form of Exhibit D, and covering such other matters relating to the Borrower, this Agreement or the Transactions as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) 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 Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPthis Agreement or the Transactions, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Sectionits counsel.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to dated the extent applicable, as of Restatement Effective Date and signed by a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates Financial Officer of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a partyBorrower, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified confirming compliance as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being with the conditions set forth in full force and effect without modification or amendment, paragraphs (a) and (ivb) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationSection 4.02.
(e) The There shall be no loans outstanding under the Original Credit Agreement immediately prior to the Restatement Effective Date. All interest, fees, indemnities and other amounts accrued under the Original Credit Agreement in respect of periods prior to the Restatement Effective Date, regardless of whether due under the Original Credit Agreement, shall have been paid by the Borrower to the Administrative Agent for the accounts of the lenders entitled thereto under the Original Credit Agreement. In addition, the Administrative Agent shall have received upfront fees from received, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower for hereunder or under the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative AgentOriginal Credit Agreement.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart counterparts of a Reaffirmation the Guarantee Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower Parent and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loanseach Domestic Subsidiary. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective 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., Cleveland time, on December 15, 2004 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto Revolving Facility Lender, the Borrower, and the Administrative Agent, either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent in connection with the transactions contemplated by the Restatement to ensure the continued validity, enforceability and priority of the Lenders Loan Documents after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and dated other documents as the Administrative Agent may have reasonably requested in connection therewith.
(c) All accrued interest and fees payable hereunder through the Restatement Effective Date shall have been paid.
(d) The Administrative Agent shall have received from the Borrower an upfront fee payable for the account of each Revolving Facility Lender set forth on Schedule 2.01 equal to 0.25% of the aggregate principal amount of such ▇▇▇▇▇▇’s Revolving Facility Commitment immediately after giving effect to the Restatement Effective Date.
(e) The Administrative Agent shall have received (or be reasonably satisfied that it will receive promptly after the Restatement Effective Date), on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of (i) ▇▇▇▇, Weiss▇▇▇▇▇, Rifkind▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York special counsel for the Loan Parties, and (ii) Walkers (Bermuda) Limited, Bermuda counsel for the Loan Parties, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., ▇▇▇▇▇▇▇▇ LLPIslands and maritime counsel for the Loan Parties and (iv) GrahamThompson, special Bahamas and maritime counsel for the Loan Parties, as in each case (A) dated the Restatement Effective Date, (B) addressed to such matters as each Issuing Bank, the Administrative Agent, the Collateral Agent may reasonably request and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead Arranger. Each of Holdings and Loan Documents as the Borrower hereby requests such counsels to deliver such opinionsAdministrative Agent shall reasonably request.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, Party dated the Restatement Effective DateDate and certifying:
(i) a copy of the certificate or articles of incorporation, substantially in the form certificate of Exhibit G with appropriate insertionslimited partnership, executed by any Responsible Officer certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, and including or attaching the documents referred to (1) if available from an official in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedsuch jurisdiction, to the extent applicable, certified as of a recent date by the applicable Governmental AuthoritySecretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) signature and incumbency certificates a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of the Responsible Officers such jurisdiction) of each such Loan Party executing the Loan Documents to which it is as of a party, recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors and/or similar (or equivalent governing bodies body) of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified dated as of the Restatement Effective Date by its secretaryto which such person is a party and, an assistant secretary in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or a Responsible Officer as being amended and are in full force and effect without modification or amendment, and on the Restatement Effective Date,
(ivv) a good standing certificate (as to the extent such concept exists) from the applicable Governmental Authority incumbency and specimen signature of each officer executing any Loan Party’s jurisdiction of incorporation, organization Document or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans any other document delivered in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed connection herewith on behalf of such party or Loan Party, and
(iivi) written evidence satisfactory as to the Administrative Agent (which may include facsimile absence of any pending proceeding for the dissolution or other electronic transmission liquidation of a signed counterpart such Loan Party or, to the knowledge of a Reaffirmation Agreement) that such party has signed a counterpart person, threatening the existence of a Reaffirmation Agreement.such Loan Party;
(g) The Administrative Agent Lenders shall have received a solvency certificate from the chief financial officer or chief operating officer of the Borrower (x) substantially in the form of Exhibit Q certifying as to the solvency C and signed by a Financial Officer of the Borrower and its Subsidiaries on a consolidated basis after giving effect Borrower.
(h) JPMorgan Chase Bank, N.A. shall have received all fees payable thereto or to the Transactions to be consummated any Lender on or prior to the Restatement Effective Date and (y) as and, to the satisfaction extent invoiced at least three Business Days prior to the Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇ (Bermuda) Limited, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the conditions set forth in Section 4.02Loan Parties hereunder or under any Loan Document.
(hi) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five three Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActPATRIOT Act that has been requested by the Administrative Agent in writing at least ten Business Days prior to the Restatement Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 Business Days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) The On and as of the Restatement Effective Date, the representations and warranties of the Borrower and each other Loan Party set forth in Sections 4.01(b) and 4.01(c) hereof shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) and (ii) the Administrative Agent shall have received a Borrowing Request requesting the borrowing certificate from a Responsible Officer of the Initial Term Loans. The Administrative Agent shall notify Holdings, Borrower certifying as to the Borrower matters set forth in Sections 4.01(b) and the Lenders of 4.01(c) hereof.
(k) Substantially concurrently with the Restatement Effective Date, the Borrower shall have paid to the Administrative Agent, for the account of each Lender immediately prior to giving effect to this Agreement, all outstanding amounts, including all accrued and unpaid interest, with respect to the Existing Loans outstanding immediately prior to the Restatement Effective Date.
(l) The elements of the Collateral and Guarantee Requirement required to be satisfied on or prior to the Restatement Effective Date (or promptly after the Restatement Effective Date, as applicable) with respect to the Subsidiary Guarantors and the Specified Additional Vessels shall have been satisfied and the Administrative Agent shall have received the results of a search of Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C. and the State of Florida and lien searches of any other office or jurisdiction in which the Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with 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 Liens or have been or will promptly after the Restatement Effective Date be released; provided that, notwithstanding the terms of this Section 4.02(l) and Section 4.02(m), to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than (A) execution and delivery of the Collateral Agreement by the Subsidiary Guarantors, (B) execution and delivery of the Subsidiary Guarantor Pledge Agreement to be delivered by the holder of Equity Interests of the Subsidiary Guarantors (and, if required under the applicable governing law, each Subsidiary Guarantor), or (C) any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement and/or the registration or recording of a Vessel Mortgage with respect to each Specified Additional Vessel in the appropriate ship registry) is not able to be provided on the Restatement Effective Date after the Borrower’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Restatement Effective Date in accordance with Section 5.10.
(m) The Loan-to-Value Ratio as of the Restatement Effective Date shall be equal to or less than 0.55 to 1.0.
(n) The Collateral Agent shall have received (or shall be reasonably satisfied that it will receive promptly after the Restatement Effective Date), with respect to each Specified Additional Vessel:
(i) evidence that the Vessel Mortgage has been duly executed and delivered by each Specified Additional Subsidiary Guarantor, as applicable, and duly registered in accordance with the laws of the appropriate ship registry and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage or first preferred ship mortgage and subsisting Lien securing the Obligations on each Specified Additional Vessel in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) a Transcript of Register or Certificate of Ownership and Encumbrance issued by the appropriate ship registry stating that each Specified Additional Vessel is owned by the applicable Specified Additional Subsidiary Guarantor and that there are of record no liens or other encumbrances on each Specified Additional Vessel except the Vessel Mortgage in favor of the Collateral Agent and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society to the effect that each Specified Additional Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of each Specified Additional Vessel naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
(v) copies of the DOC and SMC referred to in clause (a) of the definition of “ISM Code Documentation,” for each Specified Additional Vessel certified as true and in effect by each Specified Additional Subsidiary Guarantor, as applicable; and (y) copies of such ISM Code Documentation for each Specified Additional Vessel as the Administrative Agent may by written notice to the Borrower request no later than two Business Days before the Restatement Effective Date, certified as true and complete in all material respects by each Specified Additional Subsidiary Guarantor, as applicable; and
(vi) a copy of the International Ship Security Certificate for each Specified Additional Vessel issued under the ISPS Code, certified as true and in effect by each Specified Additional Subsidiary Guarantor, as applicable.
(i) On the Restatement Effective Date, the Collateral Agent shall have received (a) counterparts of each amendment to Vessel Mortgage in respect of any ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel duly executed and delivered by the registered owner of such Mortgaged Vessel and the Mortgage Trustee suitable for recordation with the central office of the Maritime Administrator for the Republic of the ▇▇▇▇▇▇▇▇ Islands in New York City (the “Maritime Administrator’s Office”), (b) evidence that each Amendment to Vessel Mortgage in respect of any ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel has been (or will, promptly following the Restatement Effective Date, be) duly registered with the Maritime Administrator’s Office in accordance with the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands and such other evidence that the Mortgage Trustee may deem necessary and that all registration fees in connection therewith have been duly paid and (c) counterparts of each amendment to Deeds of Covenants in respect of any Bahamas flagged Mortgaged Vessel duly executed and delivered by the registered owner of such Mortgaged Vessel and the Mortgage Trustee; (ii) on or promptly following the Restatement Effective Date, a Certificate of Ownership and Encumbrances issued by the Maritime Administrator’s Office stating that such ▇▇▇▇▇▇▇▇ Islands flagged Mortgage Vessel is owned by the Subsidiary Guarantor and showing that there are of record no other liens or encumbrances on such ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel except the Vessel Mortgage as amended by the Amendment in favor of the Mortgage Trustee; (iii) such other documents, including any consents, agreements or confirmation of third parties as may be required under any Amendment to the Mortgages in respect of the ▇▇▇▇▇▇▇▇ Islands flagged Mortgage Ships or otherwise as the Collateral Agent or the Mortgage Trustee may reasonably request; and (iv) the Administrative Agent shall have received (or be reasonably satisfied that it will received promptly after the Restatement Effective Date) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., ▇▇▇▇▇▇▇▇ Islands counsel to the Loan Parties and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Bahamas counsel to the Loan Parties. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be conclusive deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Restatement Effective Date specifying its objection thereto and bindingsuch Lender shall not have made available to the Administrative Agent such ▇▇▇▇▇▇’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from Lenders constituting the Required Lenders (under and as defined in the Original Credit Agreement), the Administrative Agent, the Borrowers, each other party thereto Term A Lender , each Revolving Facility Lender and each Issuing Bank either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent in connection with the transactions contemplated by the Restatement to ensure the continued validity, enforceability and priority of the Loan Documents after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and other documents as the Administrative Agent may have reasonably requested in connection therewith.
(c) All accrued interest and fees payable hereunder through the Restatement Effective Date shall have been paid.
(d) The Administrative Agent shall have received from the Company an upfront fee payable for the account of each Lender party to this Agreement on the Restatement Effective Date equal to (i) 0.20% of the aggregate principal amount of such Lender’s Term A Loan Commitment and Revolving Facility Commitment on the Restatement Effective Date up to the aggregate principal amount of “Term A Loans” and “Revolving Facility Commitments” if any, held by such Lender immediately prior to the Restatement Effective Date and (ii) 0.30% of the aggregate principal amount of such Lender’s Term A Loan Commitment and Revolving Facility Commitment on the Restatement Effective Date in excess of the amount described in subclause (i) above.
(e) The Administrative Agent shall have received, on behalf of itself, the Lenders and dated the Restatement Effective Dateeach Issuing Bank, a favorable written opinion of (i) of ▇P▇▇▇, Weiss, Rifkind, ▇W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as (ii) Walkers Global, Bermuda counsel for the Loan Parties, (iii) C▇▇▇▇ & Co, M▇▇▇▇▇▇▇ Islands counsel for the Loan Parties, (iv) G▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Bahamas counsel for the Loan Parties, and (v) C▇▇▇▇ & Co, maritime counsel for the Loan Parties, in each case (A) dated the Restatement Effective Date, (B) addressed to such matters as each Issuing Bank, the Administrative Agent, the Collateral Agent may reasonably request and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead Arranger. Each of Holdings and Loan Documents as the Borrower hereby requests such counsels to deliver such opinionsAdministrative Agent shall reasonably request.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, Party dated the Restatement Effective DateDate and certifying:
(i) a copy of the certificate or articles of incorporation, substantially in the form certificate of Exhibit G with appropriate insertionslimited partnership, executed by any Responsible Officer certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, and including or attaching the documents referred to (1) if available from an official in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedsuch jurisdiction, to the extent applicable, certified as of a recent date by the applicable Governmental AuthoritySecretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) signature and incumbency certificates a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of the Responsible Officers such jurisdiction) of each such Loan Party executing the Loan Documents to which it is as of a party, recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors and/or similar (or equivalent governing bodies body) of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified dated as of the Restatement Effective Date by its secretaryto which such person is a party and, an assistant secretary in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or a Responsible Officer as being amended and are in full force and effect without modification or amendment, and on the Restatement Effective Date,
(ivv) a good standing certificate (as to the extent such concept exists) from the applicable Governmental Authority incumbency and specimen signature of each officer executing any Loan Party’s jurisdiction of incorporation, organization Document or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans any other document delivered in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed connection herewith on behalf of such party or Loan Party, and
(iivi) written evidence satisfactory as to the Administrative Agent (which may include facsimile absence of any pending proceeding for the dissolution or other electronic transmission liquidation of a signed counterpart such Loan Party or, to the knowledge of a Reaffirmation Agreement) that such party has signed a counterpart person, threatening the existence of a Reaffirmation Agreement.such Loan Party;
(g) The Administrative Agent Lenders shall have received a solvency certificate from the chief financial officer or chief operating officer of the Borrower (x) substantially in the form of Exhibit Q certifying as to the solvency C and signed by a Financial Officer of the Borrower Company and its Subsidiaries on a consolidated basis after giving effect solvency certificate signed by a Financial Officer of the Co-Borrower.
(h) JPMorgan Chase Bank, N.A. shall have received all fees payable thereto or to the Transactions to be consummated any Lender on or prior to the Restatement Effective Date and (y) as and, to the satisfaction extent invoiced at least three Business Days prior to the Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP and W▇▇▇▇▇, ▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the conditions set forth in Section 4.02Loan Parties hereunder or under any Loan Document.
(hi) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five three Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The PATRIOT Act that has been requested by the Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of in writing at least ten Business Days prior to the Restatement Effective Date. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Restatement Effective Date specifying its objection thereto and such notice Lender shall be conclusive and bindingnot have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Restatement Effective Date. The Without affecting the rights of the Borrower or any Subsidiary hereunder at all times prior to the Restatement Effective Date, the amendment and restatement of the Original Agreement in the form hereof and the obligations of the Lenders to make Loans and acquire participations in Letters of Credit and Swingline Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counselconditions set forth in Sections 3(d) and 4 of the Second Amendment shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreementbeen satisfied.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) party hereto a counterpart of a Reaffirmation this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementparty.
(gc) The Administrative Agent Agents shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower all fees and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated other amounts due and payable on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder (including under the conditions set forth in Section 4.02Original Agreement) or under any other Senior Loan Document.
(hd) The Administrative Agent Collateral and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as Guarantee Requirement shall have been reasonably requested in writing at least 10 Business Days prior to satisfied and the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of completed Perfection Certificate dated the Restatement Effective DateDate and signed by an executive officer or Financial Officer of the Borrower, together with all attachments contemplated thereby, including the results of a Lien search in scope satisfactory to the Collateral Agents made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such notice 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; provided, however, that in the case of Loan Parties in respect of which Lien searches were performed in connection with the closing of the Original Agreement, such Lien searches shall be conclusive and binding.limited to updates of the Lien searches previously
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Restatement Agreement.Loan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit D.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Stoel Rives LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPcovering such matters relating to the Borrower, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization and valid existence of each the Borrower, the authorization of the Transactions and any other legal matters relating to the ▇▇▇▇▇▇▇▇, the Loan PartyDocuments or the Transactions, dated all in form and substance satisfactory to the Restatement Effective Date, substantially Administrative Agent and its counsel and as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.D.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretary, an assistant secretary or a Responsible Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true and correct as being in full force and effect without modification or amendment, of such date and (ivii) a good standing certificate (to the extent that no Default or Event of Default has occurred and is continuing as of such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationdate.
(e) The Administrative Agent shall have received upfront fees from the Borrower received, for the account of the Lenders providing Initial Term Loans in applicable Persons, payment of all accrued and unpaid interest and fees owing under the amounts previously agreed between Existing Credit Agreement immediately prior to the Borrower and the Administrative AgentRestatement Effective Date.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed all fees and other amounts due and payable on behalf of such party or (ii) written evidence satisfactory prior to the Administrative Agent (which may include facsimile Restatement Effective Date, including, to the extent invoiced, reimbursement or other electronic transmission payment of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementall out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received a certificate from the chief (i) satisfactory audited consolidated financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency statements of the Borrower and its Subsidiaries on a consolidated basis after giving effect to for the Transactions to be consummated on or two most recent fiscal years ended prior to the Restatement Effective Date as to which such financial statements are available and (yii) satisfactory unaudited interim consolidated financial statements of the Borrower and its Subsidiaries on a consolidated basis for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) as to the satisfaction of the conditions set forth in Section 4.02which such financial statements are available.
(hi) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days days prior to the Restatement Effective DateDate (or such shorter period agreed to by the Administrative Agent in its sole discretion), all documentation and other information about regarding the Loan Parties as shall have been reasonably Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Restatement Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) The Administrative Agent shall have received a Borrowing Request requesting such other documents as the borrowing of Administrative Agent or the Initial Term LoansRequired Lenders (through the Administrative Agent) may reasonably request. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the 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 3:00 p.m., New York City time, on November 3, 2021 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Restatement Effective Date. The amendment and restatement of the Original Agreement in the form hereof, and the obligations of the Lenders to make Loans hereunder on the Restatement Effective Date and acquire participations in Swingline Loans pursuant hereto, shall not become effective until on the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, each other party thereto Lender and the Administrative Agent either (i) a counterpart of the Restatement this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Separation Transactions shall have been consummated in accordance with and as described in the Information Statement, without any changes or deviations therefrom that could reasonably be expected to be materially adverse to the Lenders, except for any such changes or deviations that have been approved by the Required Lenders.
(c) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesVice President, as to such matters as the Administrative Agent may reasonably request Deputy General Counsel and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each Assistant Secretary of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated or any internal or outside counsel designated by the Restatement Effective DateBorrower), substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan PartyB-1, and including covering such matters relating to the Borrower, this Agreement or attaching the documents referred Transactions as the Lenders shall reasonably request. The Borrower hereby requests such counsel to in paragraph (d) of this Sectiondeliver such opinion.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers Borrower in its jurisdiction of each Loan Party executing organization, the Loan Documents to which it is a party, (iii) resolutions authorization of the board of directors and/or similar governing bodies of each Loan Party approving Transactions and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (any other legal matters relating to the extent such concept exists) from Borrower, the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporationSubsidiaries, organization this Agreement or formationthe Transactions, all in form and substance reasonably satisfactory to the Administrative Agent.
(e) The Borrower shall have provided the Administrative Agent shall have received upfront fees from the Borrower for the account of and the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and with certain pro forma financial information reasonably requested by the Administrative AgentAgent (it being agreed that this condition was satisfied on September 14, 2015).
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either certificates dated the Restatement Effective Date (i) signed by a counterpart Vice President or a Financial Officer of a Reaffirmation Agreement signed on behalf the Borrower confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 as of such party date (but without excluding the representation and warranty set forth in Section 3.04(b) or Section 3.05) and (ii) written evidence satisfactory signed by a Financial Officer of the Borrower, substantially in the form of Exhibit B-2, with respect to the Administrative Agent (which may include facsimile or solvency on such date of the Borrower and the Subsidiaries, on a consolidated basis, after giving effect to the Separation Transactions and the other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementtransactions to be consummated on the Restatement Effective Date.
(g) There shall not have occurred or come to the attention of the Lenders any event or circumstance (for the avoidance of doubt, other than consummation of the Separation Transactions) that has resulted or could reasonably be expected to result in a material adverse change in the actual business, assets, operations or financial condition of the HPI Businesses since October 31, 2014.
(h) The Borrower shall have permanently reduced the Revolving Commitments under the Original Credit Agreement to an aggregate amount not in excess of $4,000,000,000 (and the Lenders party hereto hereby waive any prior notice requirement under the Original Credit Agreement with respect to delivery of any notice of such reduction to become effective on the Restatement Effective Date).
(i) The principal of and accrued interest on all loans outstanding, and all fees and other amounts accrued or owing, under the Existing Credit Agreements (other than in respect of contingent obligations with respect to which no claims have been made) shall have been paid in full, the lending commitments thereunder shall have been terminated, and the Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer reasonably satisfactory evidence of the Borrower foregoing.
(xj) in the form of Exhibit Q certifying as to the solvency of the Borrower All fees, cost reimbursements and its Subsidiaries on a consolidated basis after giving effect to the Transactions out-of-pocket expenses required to be consummated paid or reimbursed on or prior to the Restatement Effective Date and pursuant hereto (yincluding under the Original Credit Agreement) as or pursuant to the satisfaction Commitment Letter, to the extent invoiced prior to (or, in the case of the conditions set forth in Section 4.02.
(h) The Administrative Agent cost reimbursement and the Lead Arranger shall have receivedout-of-pocket expenses, at least five not fewer than two Business Days prior to to) the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to paid or will be paid on the Restatement Effective Date by substantially concurrently with the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing effectiveness of the Initial Term Loansthis Agreement. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the Original Agreement in the form hereof and obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on November 30, 2015 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (Hp Inc)
Restatement Effective Date. The obligations amendment and restatement of the Lenders Existing Credit Agreement to make Loans hereunder be in the form of this Agreement shall become effective on the Restatement Effective Date shall not become effective until the first date on which each of the following conditions precedent shall be have been satisfied (or waived in accordance with Section 9.029.02 of the Existing Credit Agreement):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic image scan transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent and the Arrangers shall have received a written opinions opinion (addressed to the Administrative Agent Agent, the Lenders and the Lenders Issuing Banks and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to covering such matters relating to the Borrower, this Agreement or the Transactions as the Administrative Agent or the Arrangers shall reasonably request.
(c) The Administrative Agent and the Arrangers shall have received such documents and certificates as the Administrative Agent, the Arrangers or their respective counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent Agent, the Arrangers and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Sectiontheir respective counsel.
(d) The Administrative Agent and the Arrangers shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretarythe President, an assistant secretary a Vice President or a Responsible Financial Officer as being of the Borrower, confirming satisfaction of the conditions set forth in full force and effect without modification or amendment, paragraphs (a) and (ivb) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationSection 4.03.
(e) The Administrative Agent Agent, the Arrangers and the Lenders shall have received upfront all fees from and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agenthereunder.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to Agent, the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent Arrangers and the Lead Arranger Lenders shall have received, at least five two Business Days prior to the Restatement Effective Date, all documentation and other information about relating to the Loan Parties as shall have been reasonably Borrower requested in writing by them at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under for purposes of ensuring compliance with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(ig) The Administrative Agent Term Loan Credit Agreement shall have become (or, substantially contemporaneously with the amendment and restatement of the Existing Credit Agreement to be in the form of this Agreement becoming effective, shall become) effective, and the Arrangers shall have received a Borrowing Request requesting the borrowing copy of the Initial definitive Term LoansLoan Credit Agreement. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingbinding upon all parties hereto.
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be satisfied (satisfaction, or waived waiver in accordance with Section 9.02):, of the following conditions on or before the Restatement Effective Date:
(a) The Administrative Agent (or its counsel) Lead Arrangers shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent all documentation and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, information at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 (5) Business Days prior to the Restatement Effective Date as is reasonably requested in writing by the Administrative Agent or Lead Arrangers about the Lead Arranger that they shall have reasonably determined is Loan Parties, in each case, to the extent (i) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActAct and (ii) requested in writing at least ten Business Days prior to the Restatement Effective Date.
(b) The Lead Arrangers shall have received unaudited financial statements for any interim period or periods of Holdings and its Subsidiaries ended after the date of the most recent audited financial statements filed with the Securities and Exchange Commission, including unaudited financial statements for the Fiscal Quarter ending April 29, 2017. The Lead Arrangers shall have received projections of Loan Parties, and an opening pro forma balance sheet for Holdings and its Subsidiaries, in each case in form and substance reasonably satisfactory to the Lead Arrangers, including projected balance sheets, income statements, statements of cash flows and availability of Holdings and its Subsidiaries on a quarterly basis for the period through the end of January 2018 and on an annual basis thereafter through the end of the 2019 Fiscal Year.
(c) The Loan Documents required to be delivered as of the Restatement Effective Date and required to be executed by the Loan Parties shall have been executed by the Loan Parties and copies of executed counterparts thereof shall have been delivered to Administrative Agent, including:
(i) The Administrative Agent shall have received a Borrowing Request requesting favorable written opinion (addressed to the borrowing Administrative Agent, the Issuing Banks and the Lenders and dated the Restatement Effective Date) of each of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel for the Loan Parties, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Associate General Counsel of Parent Borrower, covering such matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent or the Required Revolving Lenders shall reasonably request, dated as of the Initial Term Loans. Restatement Effective Date and in form and substance reasonably satisfactory to Administrative Agent (and each Loan Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(ii) The Administrative Agent shall notify Holdingshave 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 Loan Party, the Borrower authorization of the Transactions and any other legal matters relating to the Lenders Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(iii) The Administrative Agent shall have received an originally executed Restatement Effective Date Certificate, together with all attachments thereto.
(iv) 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 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. None of the Collateral shall be subject to any Liens, except for liens permitted under Section 6.02.
(d) The Administrative Agent shall have received a completed Perfection Certificate dated as of the Restatement Effective Date and signed by an executive officer or Financial Officer of the Parent Borrower, together with all attachments contemplated thereby.
(e) The Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, an acknowledgement from each Person that was a Lender under the Existing ABL Credit Agreement and who will not be a Lender after the Restatement Effective Date.
(f) Minimum opening Excess Availability as of the Restatement Effective Date, after the application of proceeds of the initial Loans and such notice issuance of initial Letters of Credit made or issued on the Restatement Effective Date, and after provision for payment of all fees and expenses of the Transactions, shall be conclusive not less than $750,000,000. Administrative Agent shall have received a Borrowing Base Certificate dated as of, and bindingthrough the period ended, April 29, 2017.
(g) No Defaults or Events of Default shall exist or have occurred and be continuing. All costs, fees and expenses contemplated hereby due and payable on the Restatement Effective Date to Administrative Agent, Collateral Agent, Lead Arrangers and Lenders shall have been paid to the extent invoiced to Parent Borrower within 5 days prior to the Restatement Effective Date.
(h) There shall not exist any action, suit, investigation, litigation or proceeding pending in any court or before any arbitrator or Governmental Authority that challenges the legality of, or otherwise seeks to enjoin, the credit facility under this Agreement or the other Transactions.
Appears in 1 contract
Sources: Credit Agreement (J C Penney Co Inc)
Restatement Effective Date. The amendment and restatement of the Existing Credit Agreement and the obligations of the Lenders to make Loans and of the Letter of Credit Issuers to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):by each Lender:
(a) The Administrative Agent (or its counsel) shall have received from counterparts hereof signed by the Parent and each other party thereto either (i) a counterpart of the Restatement Agreement signed Lenders listed on behalf the signature pages hereof (or, in the case of such any party or (ii) written evidence satisfactory as to which an executed counterpart shall not have been received, receipt by the Administrative Agent (which may include in form satisfactory to it of facsimile or other electronic transmission of a signed counterpart of this Agreement) that written confirmation from such party that it has signed executed a counterpart of the Restatement Agreementhereof).
(b) The Administrative Agent shall have received favorable written opinions (opinion letter addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) Date of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇B▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as and C▇▇▇▇▇▇, D▇▇▇ & P▇▇▇▇▇▇ Limited, Bermuda counsel to the Parent, JRG Reinsurance and Holdings II, which opinion letters shall cover such matters relating to the Loan Parties, the Loan Documents or the Financing Transactions as the Administrative Agent may or the Required Lenders shall reasonably request and otherwise shall be in form and substance content reasonably satisfactory to the Administrative Agent and the Lead ArrangerAgent. Each of Holdings and the Borrower hereby The Parent requests such counsels counsel to deliver such opinionsopinion letter.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party and its Material Subsidiaries, the authorization for and validity of the Financing Transactions and any other legal matters relating to each Loan Party, dated its Material Subsidiaries, the Restatement Effective DateLoan Documents or the Financing Transactions, substantially all in form and substance satisfactory to the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, Administrative Agent and including or attaching the documents referred to in paragraph (d) of this Sectionits counsel.
(d) The Administrative Agent shall have received a copy certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Parent, confirming compliance with the conditions set forth in clauses (ib), (c) each Organizational Document and (d) of each Section 4.02.
(e) The Required Lenders shall not have notified the Administrative Agent of their determination that, since December 31, 2015, any event, development or circumstance has occurred that has had or would reasonably be expected to have a Material Adverse Effect.
(f) Neither of the Arranger nor the Administrative Agent shall have become aware of any information or other matter affecting the Loan Party certifiedParties or the Financing Transactions which was in existence prior to the date of this Agreement and is inconsistent in a material and adverse manner with any such information or other matter disclosed to them prior to the date of this Agreement.
(g) Each Guarantor shall have executed and delivered to the Administrative Agent a confirmation of its Payment Guaranty in form and substance satisfactory to the Administrative Agent.
(h) The Parent shall have paid all fees and other amounts due and payable to the Lender Parties on or before the Restatement Effective Date, including, to the extent applicableinvoiced, as all out-of-pocket expenses (including fees, charges and disbursements of a recent date counsel) required to be reimbursed or paid by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing Borrowers under the Loan Documents Documents, including the fees payable pursuant to which it is a party, Section 2.12(d).
(iiii) resolutions of All consents and approvals required to be obtained from any Applicable Insurance Regulatory Authority or other Governmental Authority or other Person in connection with the board of directors and/or similar governing bodies of each Loan Party approving Financing Transactions shall have been obtained and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being be in full force and effect without modification effect, except where failure to obtain such approval or amendmentconsent would not have a Material Adverse Effect.
(i) The Borrowers shall have deposited with the Administrative Agent, for the ratable payment to the Departing Lender and the Remaining Lenders, an amount in immediately available funds equal to all accrued and unpaid interest (together with any applicable breakage compensation), commitment fees, Letter of Credit participation fees and fronting fees under the Existing Credit Agreement to but not including the Restatement Effective Date; and
(ii) the Administrative Agent shall have received evidence satisfactory to the Administrative Agent that, concurrently with the effectiveness of this Agreement, (A) the respective Debts of the Parent and JRG Reinsurance to the Departing Lender for its Existing Revolving Loans and their other obligations, including accrued but unpaid interest and fees, to the Departing Lender under the Existing Credit Agreement shall have been paid and discharged in full, and (ivB) a good standing certificate (subject to such concurrent payment and discharge, the Departing Lender shall have consented in writing to the extent amendment and restatement of the Existing Credit Agreement upon and subject to the terms and conditions of this Agreement, including its ceasing to be a “Lender” to the Borrowers thereunder and hereunder. Each Remaining Lender hereby consents to such concept exists) from payment and discharge in full of the applicable Governmental Authority Borrowers’ Debts to the Departing Lender notwithstanding the pro rata sharing of each Loan Party’s jurisdiction payments otherwise required by Section 2.18 of incorporation, organization or formationthe Existing Credit Agreement.
(ek) The Parent shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that the Best Rating of each Insurance Subsidiary is not lower than “A-”.
(l) The Administrative Agent shall have received upfront fees from JRG Reinsurance evidence reasonably satisfactory to the Borrower Administrative Agent that no approval of any Applicable Insurance Regulatory Authority is required for the account any Borrowings by JRG Reinsurance or issuances of Letters of Credit with respect to which JRG Reinsurance is obligated under either of the Lenders providing Initial Term Loans Secured Facility or the Unsecured Facility and its pledge of Eligible Collateral under the Secured Facility, with such Debt and other obligations of JRG Reinsurance hereunder in each case ranking at least equally with claims of other creditors (including policy holders) of JRG Reinsurance, or, if such approval is required, that JRG Reinsurance has obtained such approval (the amounts previously agreed between “Regulatory Condition Satisfaction”).
(m) Each Borrower shall have executed and delivered to the Borrower Administrative Agent a confirmation of its respective Pledge Agreement; and JRG Reinsurance shall have executed and delivered to the Administrative Agent a confirmation of its Control Agreement, in each case, in form and substance satisfactory to the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(hn) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about received from the Loan Parties such other certificates and other documents as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall any Lender may reasonably have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsrequested, including without limitation the USA Patriot Act.
(ipromissory note complying with Section 2.09(e) The Administrative Agent shall have received a Borrowing Request of any Lender requesting such promissory note. Notwithstanding the borrowing foregoing, the obligations of the Initial Term Loans. The Administrative Agent Lenders to make Loans and of the Letter of Credit Issuers to issue Letters of Credit shall notify Holdingsnot become effective unless each of the foregoing conditions is satisfied (or waived by each Lender) before 5:00 p.m., Prevailing Eastern Time, on or before December 15, 2016 (and, if any such condition is not so satisfied or waived, the Borrower and the Lenders of the Restatement Effective Date, and Commitments shall terminate at such notice shall be conclusive and bindingtime).
Appears in 1 contract
Sources: Credit Agreement (James River Group Holdings, Ltd.)
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto Revolving Facility Lender, each Borrower, and the Administrative Agent, either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent in connection with the transactions contemplated by the Restatement to ensure the continued validity, enforceability and priority of the Lenders Loan Documents after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and dated other documents as the Administrative Agent may have reasonably requested in connection therewith.
(c) All accrued interest and fees payable hereunder through the Restatement Effective Date shall have been paid.
(d) The Administrative Agent shall have received from the Company an upfront fee payable for the account of each Revolving Facility Lender set forth on Schedule 2.01 equal to 0.25% of the aggregate principal amount of such ▇▇▇▇▇▇’s Revolving Facility Commitment immediately after giving effect to the Restatement Effective Date.
(e) The Administrative Agent shall have received (or be reasonably satisfied that it will receive promptly after the funding of Loans on the Restatement Effective Date), on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of (i) ▇▇▇▇, Weiss▇▇▇▇▇, Rifkind▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York special counsel for the Loan Parties, and (ii) Walkers (Bermuda) Limited, Bermuda counsel for the Loan Parties, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., ▇▇▇▇▇▇▇▇ LLP, special Islands and maritime counsel for the Loan Parties, as (iv) Cains, Isle of Man counsel for the Loan Parties and (v) GrahamThompson, Bahamas counsel for the Loan Parties, in each case (A) dated the Restatement Effective Date, (B) addressed to such matters as each Issuing Bank, the Administrative Agent, the Collateral Agent may reasonably request and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead Arranger. Each of Holdings and Loan Documents as the Borrower hereby requests such counsels to deliver such opinionsAdministrative Agent shall reasonably request.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, Party dated the Restatement Effective DateDate and certifying:
(i) a copy of the certificate or articles of incorporation, substantially in the form certificate of Exhibit G with appropriate insertionslimited partnership, executed by any Responsible Officer certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, and including or attaching the documents referred to (1) if available from an official in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedsuch jurisdiction, to the extent applicable, certified as of a recent date by the applicable Governmental AuthoritySecretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) signature and incumbency certificates a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of the Responsible Officers such jurisdiction) of each such Loan Party executing the Loan Documents to which it is as of a party, recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors and/or similar (or equivalent governing bodies body) of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified dated as of the Restatement Effective Date by its secretaryto which such person is a party and, an assistant secretary in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or a Responsible Officer as being amended and are in full force and effect without modification or amendment, and on the Restatement Effective Date,
(ivv) a good standing certificate (as to the extent such concept exists) from the applicable Governmental Authority incumbency and specimen signature of each officer executing any Loan Party’s jurisdiction of incorporation, organization Document or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans any other document delivered in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed connection herewith on behalf of such party or Loan Party, and
(iivi) written evidence satisfactory as to the Administrative Agent (which may include facsimile absence of any pending proceeding for the dissolution or other electronic transmission liquidation of a signed counterpart such Loan Party or, to the knowledge of a Reaffirmation Agreement) that such party has signed a counterpart person, threatening the existence of a Reaffirmation Agreement.such Loan Party;
(g) The Administrative Agent Lenders shall have received a solvency certificate from the chief financial officer or chief operating officer of the Borrower (x) substantially in the form of Exhibit Q certifying as to the solvency C and signed by a Financial Officer of the Borrower and its Subsidiaries on a consolidated basis after giving effect Company.
(h) JPMorgan Chase Bank, N.A. shall have received all fees payable thereto or to the Transactions to be consummated any Lender on or prior to the Restatement Effective Date and (y) as and, to the satisfaction extent invoiced at least three Business Days prior to the Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇ (Bermuda) Limited, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the conditions set forth in Section 4.02Loan Parties hereunder or under any Loan Document.
(hi) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five three Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActPATRIOT Act that has been requested by the Administrative Agent in writing at least ten Business Days prior to the Restatement Effective Date and (ii) to the extent a Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to each Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) The On and as of the Restatement Effective Date, the representations and warranties of the Company and each other Loan Party set forth in Sections 4.01(b) and 4.01(c) hereof shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) and (ii) the Administrative Agent shall have received a Borrowing Request requesting the borrowing certificate from a Responsible Officer of the Initial Term Loans. Company certifying as to the matters set forth in Sections 4.01(b) and 4.01(c) hereof.
(k) The Administrative Agent Company shall notify Holdingshave consummated one or more debt or equity financings (including debt secured by a Lien on the Collateral secured on an equal priority basis with the Liens securing the Obligations) not prohibited by the terms of the Loan Documents, resulting in at least $790.0 million of aggregate gross proceeds to the Company and/or its subsidiaries; provided that (i) the final maturity date or mandatory redemption date of any such debt or equity shall be no earlier than the Revolving Facility Maturity Date and (ii) in the case of any debt financings, (a) such debt shall not be subject to covenants, events of default, Subsidiary guarantees and other terms (other than interest rate and redemption premiums) that, taken as a whole, are more restrictive to the Company and its Subsidiaries than the terms of the Loan Documents (or if more restrictive, the Borrower Loan Documents shall be amended to contain such more restrictive terms (which amendments shall automatically occur)), (b) such debt shall not be subject to any financial maintenance covenants and (c) such debt shall have a weighted average life to maturity greater than the Lenders remaining weighted average life to maturity of the outstanding Revolving Facility Loans.
(l) Substantially concurrently with the Restatement Effective Date, the Company shall have paid to the Administrative Agent, for the account of each Lender immediately prior to giving effect to this Agreement, all outstanding amounts, including all accrued and unpaid interest, with respect to the Existing Loans outstanding immediately prior to the Restatement Effective Date.
(m) The elements of the Collateral and Guarantee Requirement required to be satisfied on or prior to the Restatement Effective Date (or promptly after the Restatement Effective Date, as applicable) with respect to Norwegian Jewel Limited and the NORWEGIAN JEWEL shall have been satisfied and the Administrative Agent shall have received the results of a search of Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida, the jurisdiction in which such Loan Party is formed and existing and lien searches of any other office or jurisdiction in which the Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with 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 Liens or have been released; provided that, notwithstanding the terms of this Section 4.02(m) and Section 4.02(n), to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than (A) execution and delivery of the Additional Subsidiary Guarantor Accession Supplement to be delivered by Norwegian Jewel Limited, (B) execution and delivery of the Subsidiary Guarantor Pledge Agreement to be delivered by the holder of Equity Interests of Norwegian Jewel Limited (and, if required under the applicable governing law, Norwegian Jewel Limited), or (C) any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement, the registration or recording of a Vessel Mortgage with respect to the NORWEGIAN JEWEL in the appropriate ship registry) is not able to be provided on the Restatement Effective Date after the Company’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Restatement Effective Date in accordance with Section 5.10.
(n) The Collateral Agent shall have received (or shall be reasonably satisfied that it will receive promptly after the funding of Loans on the Restatement Effective Date), with respect to the NORWEGIAN JEWEL:
(i) evidence that the Vessel Mortgage has been duly executed and delivered by Norwegian Jewel Limited and duly registered in accordance with the laws of the appropriate ship registry and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage or first preferred ship mortgage and subsisting Lien securing the Obligations on the NORWEGIAN JEWEL in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) a Transcript of Register or Certificate of Ownership and Encumbrance issued by the appropriate ship registry stating that the NORWEGIAN JEWEL is owned by Norwegian Jewel Limited and that there are of record no liens or other encumbrances on the NORWEGIAN JEWEL except the Vessel Mortgage in favor of the Collateral Agent and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society to the effect that the NORWEGIAN JEWEL has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the NORWEGIAN JEWEL naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
(v) copies of the DOC and SMC referred to in clause (a) of the definition of “ISM Code Documentation,” for the NORWEGIAN JEWEL certified as true and in effect by Norwegian Jewel Limited; and (y) copies of such ISM Code Documentation for the NORWEGIAN JEWEL as the Administrative Agent may by written notice to the Company request no later than two Business Days before the Restatement Effective Date, certified as true and complete in all material respects by Norwegian Jewel Limited; and
(vi) a copy of the International Ship Security Certificate for the NORWEGIAN JEWEL issued under the ISPS Code, certified as true and in effect by Norwegian Jewel Limited.
(i) On the Restatement Effective Date, the Collateral Agent shall have received (a) counterparts of each Amendment to Vessel Mortgage in respect of any ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel duly executed and delivered by the registered owner of such Mortgaged Vessel and the Mortgage Trustee suitable for recordation with the central office of the Maritime Administrator for the Republic of the ▇▇▇▇▇▇▇▇ Islands in New York City (the “Maritime Administrator’s Office”), (b) evidence that each Amendment to Vessel Mortgage in respect of any ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel has been (or will, promptly following the Restatement Effective Date, be) duly registered with the Maritime Administrator’s Office in accordance with the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands and such other evidence that the Mortgage Trustee may deem necessary and that all registration fees in connection therewith have been duly paid; (ii) on or promptly following the Restatement Effective Date, a Certificate of Ownership and Encumbrances issued by the Maritime Administrator’s Office stating that such ▇▇▇▇▇▇▇▇ Islands flagged Mortgage Vessel is owned by the Subsidiary Guarantor and showing that there are of record no other liens or encumbrances on such ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel except the Vessel Mortgage as amended by the Amendment in favor of the Mortgage Trustee; (iii) such other documents, including any consents, agreements or confirmation of third parties as may be required under any Amendment to the Mortgages in respect of the ▇▇▇▇▇▇▇▇ Islands flagged Mortgage Ships or otherwise as the Collateral Agent or the Mortgage Trustee may reasonably request; and (iv) the Administrative Agent shall have received (or be reasonably satisfied that it will received promptly after the funding of the Loans on the Restatement Effective Date) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., ▇▇▇▇▇▇▇▇ Islands counsel to the Loan Parties. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be conclusive and binding.deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on On the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):Date:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either received, on behalf of itself, the Lenders, the Swingline Lender and the Issuing Bank, a favorable written opinion of Holland & Knight LLP, counsel for the Borrower, substantially to the effect set forth in Exhibit H, which opinion shall be (i) a counterpart of dated the Restatement Agreement signed on behalf of such party or Effective Date and (ii) written evidence satisfactory addressed to the Issuing Bank, the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that and the Lenders. The Borrower hereby requests such party has signed a counterpart of the Restatement Agreementcounsel to deliver such opinions.
(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 written opinions (addressed be satisfactory to the Lenders, to the Issuing Bank and to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsAgent.
(c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, certified as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates Secretary of State of the Responsible Officers State of its organization, and a certificate as to the good standing of each Loan Party executing as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Documents to which it Party dated the Restatement Effective Date and certifying (A) that attached thereto is a partytrue and complete copy of the by-laws of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (iiiB) that attached thereto is a true and complete copy of resolutions of duly adopted by the board of directors and/or similar governing bodies of each such Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it such person is a partyparty and, certified 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, (C) that the certificate or articles of incorporation 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; and (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.
(d) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by its secretarya Financial Officer of the Borrower, an assistant secretary or a Responsible Officer as being confirming compliance with the conditions precedent set forth in full force and effect without modification or amendmentparagraphs (b), (c) and (ivd) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationSection 4.01.
(e) The Administrative Agent shall have received upfront fees from all Fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agenthereunder or under any other Loan Document.
(f) The Administrative Agent (or its counsel) Incremental Assumption and Amendment Agreement shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementbecome effective in accordance with its terms.
(g) The Administrative Agent Lenders shall have received a certificate certificate, in form and substance satisfactory to the Lenders, from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of that the Borrower and its Subsidiaries the Subsidiaries, on a consolidated basis after giving effect to the Transactions to be consummated occur on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02Date, are solvent.
(h) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five Business Days prior to the Restatement Effective Dateextent requested, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each other party thereto hereto and the Departing Lender either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Restatement Agreement.Loan Documents and such other legal opinions, certificates and organizational documents as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit D.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Stoel Rives LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPcovering such matters relating to the Borrower, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization and valid existence of each the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, the Loan PartyDocuments or the Transactions, dated all in form and substance satisfactory to the Restatement Effective Date, substantially Administrative Agent and its counsel and as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.D.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretary, an assistant secretary or a Responsible Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true and correct as being in full force and effect without modification or amendment, of such date and (ivii) a good standing certificate (to the extent that no Default has occurred and is continuing as of such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationdate.
(e) The Administrative Agent shall have received upfront fees from the Borrower received, for the account of the Lenders providing Initial Term Loans applicable Persons, payment of (x) all accrued and unpaid interest and fees owing under the Existing Credit Agreement immediately prior to the Restatement Effective Date and (y) all principal of any “Swingline Loans” outstanding under and as defined in the amounts previously agreed between Existing Credit Agreement immediately prior to the Borrower and the Administrative AgentRestatement Effective Date.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed all fees and other amounts due and payable on behalf of such party or (ii) written evidence satisfactory prior to the Administrative Agent (which may include facsimile Restatement Effective Date, including, to the extent invoiced, reimbursement or other electronic transmission payment of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementall out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received a certificate from the chief (i) satisfactory audited consolidated financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency statements of the Borrower and its Subsidiaries on a consolidated basis after giving effect to for the Transactions to be consummated on or two most recent fiscal years ended prior to the Restatement Effective Date as to which such financial statements are available and (yii) satisfactory unaudited interim consolidated financial statements of the Borrower and its Subsidiaries on a consolidated basis for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) as to the satisfaction of the conditions set forth in Section 4.02which such financial statements are available.
(hi) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days days prior to the Restatement Effective DateDate (or such shorter period agreed to by the Administrative Agent in its sole discretion), all documentation and other information about regarding the Loan Parties as shall have been reasonably Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Restatement Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) The Administrative Agent shall have received a Borrowing Request requesting such other documents as the borrowing of Administrative Agent or the Initial Term LoansRequired Lenders (through the Administrative Agent) may reasonably request. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the 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 3:00 p.m., New York City time, on November 3, 2025 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Restatement Effective Date. The amendment and restatement of the Existing Credit Agreement and the obligations of the Lenders to make Loans and of the Letter of Credit Issuers to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):by each Lender:
(a) The Administrative Agent (or its counsel) shall have received from counterparts hereof signed by the Parent and each other party thereto either (i) a counterpart of the Restatement Agreement signed Lenders listed on behalf the signature pages hereof (or, in the case of such any party or (ii) written evidence satisfactory as to which an executed counterpart shall not have been received, receipt by the Administrative Agent (which may include in form satisfactory to it of facsimile or other electronic transmission of a signed counterpart of this Agreement) that written confirmation from such party that it has signed executed a counterpart of the Restatement Agreementhereof).
(b) The Administrative Agent shall have received favorable written opinions (opinion letter addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) Date of ▇▇▇▇, Weiss, Rifkind, ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLPLimited, special Bermuda counsel for to the Parent and JRG Reinsurance, which opinion letters shall cover such matters relating to the Loan Parties, as to such matters the Loan Documents or the Financing Transactions as the Administrative Agent may or the Required Lenders shall reasonably request and otherwise shall be in form and substance content reasonably satisfactory to the Administrative Agent and the Lead ArrangerAgent. Each of Holdings and the Borrower hereby The Parent requests such counsels counsel to deliver such opinionsopinion letter.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party and its Material Subsidiaries, the authorization for and validity of the Financing Transactions and any other legal matters relating to each Loan Party, dated its Material Subsidiaries, the Restatement Effective DateLoan Documents or the Financing Transactions, substantially all in form and substance satisfactory to the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, Administrative Agent and including or attaching the documents referred to in paragraph (d) of this Sectionits counsel.
(d) The Administrative Agent shall have received a copy certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Parent, confirming compliance with the conditions set forth in clauses (ib), (c) each Organizational Document and (d) of each Section 4.02.
(e) The Required Lenders shall not have notified the Administrative Agent of their determination that, since December 31, 2022, any event, development or circumstance has occurred that has had or would reasonably be expected to have a Material Adverse Effect.
(f) Neither of the Arranger nor the Administrative Agent shall have become aware of any information or other matter affecting the Loan Party certifiedParties or the Financing Transactions which was in existence prior to the date of this Agreement and is inconsistent in a material and adverse manner with any such information or other matter disclosed to them prior to the date of this Agreement.
(g) Each Guarantor shall have executed and delivered to the Administrative Agent a confirmation of its Payment Guaranty in form and substance satisfactory to the Administrative Agent.
(h) The Parent shall have paid all fees and other amounts due and payable to the Lender Parties on or before the Restatement Effective Date, including, to the extent applicableinvoiced, as all out-of-pocket expenses (including fees, charges and disbursements of a recent date counsel) required to be reimbursed or paid by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing Borrowers under the Loan Documents Documents, including the fees payable pursuant to which it is a party, Section 2.12(d).
(iiii) resolutions of All consents and approvals required to be obtained from any Applicable Insurance Regulatory Authority or other Governmental Authority or other Person in connection with the board of directors and/or similar governing bodies of each Loan Party approving Financing Transactions shall have been obtained and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being be in full force and effect without modification effect, except where failure to obtain such approval or amendment, and (iv) consent would not have a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationMaterial Adverse Effect.
(ej) The Borrowers shall have deposited with the Administrative Agent, for the ratable payment to the Lenders, an amount in immediately available funds equal to all accrued and unpaid interest (together with any applicable breakage compensation), commitment fees, Letter of Credit participation fees and fronting fees under the Existing Credit Agreement to but not including the Restatement Effective Date.
(k) At least five (5) days prior to the Restatement Effective Date, the Borrowers shall deliver to the Administrative Agent and each Lender a Beneficial Ownership Certification in relation to JRG Reinsurance.
(l) The Administrative Agent shall have received upfront fees from JRG Reinsurance evidence reasonably satisfactory to the Borrower Administrative Agent that no approval of any Applicable Insurance Regulatory Authority is required for the account any Borrowings by JRG Reinsurance or issuances of Letters of Credit with respect to which JRG Reinsurance is obligated under either of the Lenders providing Initial Term Loans Secured Facility or the Unsecured Facility and its pledge of Eligible Collateral under the Secured Facility, with such Debt and other obligations of JRG Reinsurance hereunder in each case ranking at least equally with claims of other creditors (including policy holders) of JRG Reinsurance, or, if such approval is required, that JRG Reinsurance has obtained such approval (the amounts previously agreed between “Regulatory Condition Satisfaction”).
(m) Each Borrower shall have executed and delivered to the Borrower Administrative Agent a confirmation of its respective Pledge Agreement; and JRG Reinsurance shall have executed and delivered to the Administrative Agent a confirmation of its Control Agreement, in each case, in form and substance satisfactory to the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(hn) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about received from the Loan Parties such other certificates and other documents as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall any Lender may reasonably have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsrequested, including without limitation the USA Patriot Act.
(ipromissory note complying with Section 2.09(e) The Administrative Agent shall have received a Borrowing Request of any Lender requesting such promissory note. Notwithstanding the borrowing foregoing, the obligations of the Initial Term Loans. The Administrative Agent Lenders to make Loans and of the Letter of Credit Issuers to issue Letters of Credit shall notify Holdingsnot become effective unless each of the foregoing conditions is satisfied (or waived by each Lender) before 5:00 p.m., Prevailing Eastern Time, on or before July 7, 2023 (and, if any such condition is not so satisfied or waived, the Borrower and the Lenders of the Restatement Effective Date, and Commitments shall terminate at such notice shall be conclusive and bindingtime).
Appears in 1 contract
Sources: Credit Agreement (James River Group Holdings, Ltd.)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date enter into this Agreement shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇each of Paul, WeissHastings, Rifkind, ▇▇▇Jano▇▇▇▇ & ▇alk▇▇▇▇▇ ▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇Vena▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special as counsel for the Loan PartiesBorrower, as to such matters as the Administrative Agent may reasonably request and all in form and substance reasonably satisfactory to the Administrative Agent Agent, and covering such other matters relating to the Lead ArrangerBorrower, this Agreement or any Transaction as the Required Lenders shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated such evidence as the Restatement Effective Date, substantially in Administrative Agent or its counsel may reasonably request that all Collateral shall have been credited to the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this SectionSecurities Account.
(d) The Administrative Agent shall have received a perfected, first priority security interest in the Securities Account and all other Collateral.
(e) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedthe Pledge and Security Agreement, to the extent applicable, as of a recent date by the applicable Governmental Authority, and (ii) signature the Securities Account Control Agreement, duly executed and incumbency certificates delivered by each of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationparties thereto.
(ef) The Administrative Agent shall have received upfront fees from such documents and certificates as the Borrower for Administrative Agent or its counsel may reasonably request relating to the account organization, existence and good standing of the Lenders providing Initial Term Loans Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, this Agreement or the Transactions, all in the amounts previously agreed between the Borrower form and substance satisfactory to the Administrative AgentAgent and its counsel.
(fg) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (k), (l) and (m) of this Section 4.01.
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including (i) to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder and (ii) the Administrative Agent Restatement Fee.
(i) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request evidencing the creation of the Securities Account at the Securities Intermediary.
(j) Administrative Agent (or its counsel) shall have received (x) from each Loan Party either party thereto (i) a counterpart of a Reaffirmation each Plan Amendment Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of a Reaffirmation each Plan Amendment Agreement) that such party has signed a counterpart of such Plan Amendment Agreement and (y) a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to certificate, dated the Restatement Effective Date and (y) as signed by the President, a Vice President or a Financial Officer of the Borrower, attaching true, complete and correct copies of each Plan Amendment Agreement and certifying that each such copy conforms to the satisfaction original.
(k) The representations and warranties of the conditions Borrower set forth in Section 4.02.
(h) The Administrative Agent this Agreement and each of the Lead Arranger Loan Documents shall have received, at least five Business Days prior to be true and correct on and as of the Restatement Effective Date, all documentation .
(l) No Default or Event of Default shall have occurred and other information about be continuing on and as of the Loan Parties as Restatement Effective Date.
(m) All waivers and consents necessary for the restructuring of the Borrower’s debt in connection with the Transaction and the Plan Amendment Agreements shall have been reasonably requested received and obtained, and no payment was made in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent connection with such waivers or consents other than payments made in accordance with this Agreement or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term LoansPlan Amendment Agreements. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Capital Trust Inc)
Restatement Effective Date. The amendment and restatement of the Original Agreement in the form hereof and the obligations of the Lenders to make Loans and the Issuing Banks hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.0210.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) Each Guarantor that has not executed and delivered this Agreement shall have entered into a written instrument reasonably satisfactory to the Administrative Agent pursuant to which it confirms that it consents to the amendment and restatement of the Original Agreement effected hereby, and that the Loan Documents to which it is party will continue to apply in respect of this Agreement and the Obligations.
(c) The Guarantee Agreement shall have been duly executed and delivered to the Administrative Agent by Battle Mountain Gold and Newmont Capital.
(d) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇ ▇. ▇▇▇▇▇▇▇ , Vice President and Chief Counsel of the Company and White & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ Case LLP, special counsel for the Loan PartiesCompany, as to such matters as substantially in the Administrative Agent may reasonably request forms of Exhibits B-1 and in form and substance reasonably satisfactory to the Administrative Agent and the Lead ArrangerB-2, respectively. Each of Holdings and the Borrower The Company hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from such documents and certificates as the Borrower for Administrative Agent or its counsel may reasonably request relating to the account organization, existence and good standing of the Lenders providing Initial Term Loans Borrowers and the other Guarantors and the authorization of the Transactions by the Borrowers and the other Guarantors, all in the amounts previously agreed between the Borrower form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, confirming compliance with the conditions set forth in paragraphs (ia) a counterpart and (b) of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation AgreementSection 4.02.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to On the Restatement Effective Date Date, (i) the Borrowers shall repay all loans outstanding under the Original Agreement and pay all accrued and unpaid interest and any amounts payable pursuant to Section 2.16 of the Original Agreement in respect thereof and (yii) as to no Letters of Credit (other than the satisfaction Existing Letters of Credit) shall be outstanding under the conditions set forth in Section 4.02Original Agreement.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days received (i) all facility fees and utilization fees accrued under the Original Agreement through the day immediately preceding the Restatement Effective Date and (ii) all other fees and other amounts due and payable on or prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior including, to the Restatement Effective Date extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder (including under the Administrative Agent Original Agreement) or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loansany other Loan Document. The Administrative Agent shall notify Holdings, the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder and of any Issuing Bank to issue, amend, renew or extend any Letter of Credit hereunder, and the incorporation of the Existing Letters of Credit as Letters of Credit hereunder, shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on April 28, 2007 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). It is understood and agreed that no term of the amendment and restatement contemplated hereby shall be effective until the Restatement Effective Date occurs, and that the Original Agreement shall continue in full force and effect without regard to the amendment and restatement contemplated hereby until the Restatement Effective Date.
Appears in 1 contract
Restatement Effective Date. The obligations Notwithstanding the execution and delivery of the Lenders to make Loans hereunder this Agreement on the Restatement Effective Date date hereof, this Agreement shall not become effective until effective, the date on which Existing Credit Agreement shall not be superseded as provided in Section 1.06, no commitment to make Credit Extensions shall arise and no Lender shall be required to make the initial Credit Extension hereunder each of the following conditions shall be has been satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from (i) each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement, (ii) each initial Subsidiary Guarantor either (A) a counterpart of the Restatement AgreementSubsidiary Guaranty signed on behalf of such Subsidiary Guarantor or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of the Subsidiary Guaranty) that such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty and (iii) each Loan Party either (A) a counterpart of a reaffirmation of the Collateral Documents signed on behalf of such Loan Party or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of such reaffirmation of the Collateral Documents) that such Loan Party has signed a counterpart of such reaffirmation of the Collateral Documents.
(b) The Administrative Agent shall have received a written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇in-house counsel to the Borrower, Weiss, Rifkind, ▇of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties and of McGuireWoods LLP, counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead ArrangerLoan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent Lenders shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, satisfactory financial statement projections through and including or attaching the documents referred to Borrower’s 2023 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in paragraph (d) of this Sectionpreparing such projections).
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers initial Loan Parties, the authorization of each the Transactions and any other legal matters relating to such Loan Party executing Parties, the Loan Documents to which it is a partyor the Transactions, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving all in form and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence substance reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) and its counsel and as further described in the form list of closing documents attached as Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and G, (yii) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days days prior to the Restatement Effective Date, all documentation and other information about regarding the Loan Parties as shall have been reasonably Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of the Borrower at least 10 Business Days prior to the Restatement Effective Date and (iii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 Business Days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (iii) shall be deemed to be satisfied).
(ie) The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Initial Term LoansBorrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(f) The Administrative Agent shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (other than contingent indemnity obligations).
(g) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Administrative Agent, on behalf of the Secured Parties, holds a perfected Lien upon the Collateral having the priority required by the Collateral Documents and that is perfected to the extent required by the Collateral Documents, or that arrangements reasonably satisfactory to the Administrative Agent for so perfecting such Liens are in place.
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Restatement Effective Date. The obligations Restated Credit Agreement shall become effective as of the Lenders to make Loans hereunder on date (the “Restatement Effective Date shall not become effective until the date Date”) on which each of the following conditions shall be have been satisfied (or waived in accordance with pursuant to Section 9.0210.1 of the Existing Credit Agreement):
(a) The Administrative Agent (or its counsel) the Amendment Effective Date shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.occurred;
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) Borrower, dated as of the Restatement Effective Date and in the form of Exhibit Q certifying as and substance reasonably acceptable to the solvency of Administrative Agent, certifying that the Borrower and its Subsidiaries subsidiaries, on a consolidated basis after giving effect to the Bioventus IPO Transactions and the other transactions contemplated thereby, are solvent;
(c) (i) the Administrative Agent shall have received evidence reasonably satisfactory to it that the Second Lien Loans shall have been repaid (or shall be consummated on or prior repaid substantially contemporaneously), together with accrued interest, and all commitments, security interests and guarantees in connection therewith shall have been terminated, and (ii) after giving effect to the Restatement Effective Date and (y) as to the satisfaction consummation of the conditions set forth in Section 4.02.Bioventus IPO Transactions, none of the Borrower nor any of its Subsidiaries shall have any material third-party Indebtedness for borrowed money other than the Indebtedness incurred under the Restated Credit Agreement (it being understood that capital lease obligations and contingent consideration shall not constitute “Indebtedness for borrowed money” for purposes of this clause (c));
(hd) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to on the Restatement Effective Date, all documentation and other information about the Loan Parties as Bioventus IPO shall have been reasonably requested in writing consummated and yielded Net Cash Proceeds of at least 10 Business Days prior $100,000,000 and such Net Cash Proceeds shall have been contributed to the Restatement Effective Borrower as a capital contribution or as consideration for the issuance of additional membership interests;
(e) as of the Pricing Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations(as defined below), including without limitation the USA Patriot Act.
(i) The Administrative Agent the Borrower shall be in compliance, on a pro forma basis after giving effect to the Bioventus IPO Transactions, with the financial covenants contained in the Restated Credit Agreement, (ii) all of the representations and warranties made by any Loan Party in the Loan Documents (including, for the avoidance of doubt, the Restated Credit Agreement) shall be true and correct in all material respects and (iii) no Default or Event of Default shall have received a Borrowing Request requesting occurred and be continuing; for purposes of this clause (e), “Pricing Date” shall mean the borrowing of date on which the Initial Term Loans. The Administrative Agent Bioventus IPO shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.price;
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date This Agreement shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) ): The Administrative Agent (or its counsel) shall have received from (i) each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) each initial Subsidiary Guarantor, if any, either (A) a counterpart of the Restatement Agreement.
Subsidiary Guaranty signed on behalf of such Subsidiary Guarantor or (bB) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of the Subsidiary Guaranty) that such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty. The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇H. ▇▇▇▇▇▇ ▇▇▇▇ ▇, Vice President, General Counsel and Secretary of the Loan Parties, substantially in the form of Exhibit B-1 and of Winston & ▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, substantially in the form of Exhibit B-2, and covering such other matters relating to the Loan Parties, the Loan Documents or the Transactions as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions. The Lenders shall have received (i) satisfactory audited consolidated financial statements of the Borrower for the two most recent fiscal years ended prior to the Restatement Effective Date as to which such matters financial statements are available, (ii) satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are publicly available and (iii) satisfactory financial statement projections through and including the Borrower’s 2012 fiscal year on an annual basis, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in preparing such projections). The Administrative Agent shall have received (i) such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the initial Loan Parties, the authorization of the Transactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings its counsel and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, E and including or attaching the documents referred to in paragraph (dii) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date requested by the applicable Governmental Authority, (ii) signature and incumbency certificates any of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective DateLenders, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(i) . The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Initial Term LoansBorrower, confirming compliance with the conditions set forth in paragraphs (i) and (j) below. The Administrative Agent shall have received evidence reasonably satisfactory to it that all material governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the Transactions and the continuing operations of the Borrower and its Subsidiaries have been obtained and are in full force and effect. The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent (or its counsel) shall have received a copy of the Revolving Credit Agreement, evidencing, as of the Restatement Effective Date, a $60,000,000 revolving credit facility, in form and substance satisfactory to the Administrative Agent, duly executed by each party thereto. The representations and warranties of the Borrower set forth in this Agreement shall be true and correct on and as of the Restatement Effective Date. No Default or Event of Default shall have occurred and be continuing. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Term Credit Agreement (Stepan Co)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such 111 Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The effectiveness of the amendment and restatement of the Existing Credit Agreement and of the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement (a “Lender Addendum”) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart of this AgreementLender Addendum) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Guarantee Agreement shall have been duly executed by Intermediate Holdings and delivered to the Administrative Agent.
(c) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each of (i)(A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York United States counsel for the Loan PartiesBorrower, substantially in the form of Exhibit B-1(A) and (B) ▇▇▇▇▇▇▇ ▇. ▇▇▇ & ▇▇▇▇, General Counsel of Intermediate Holdings, substantially in the form of Exhibit B-1(B), and (ii) ▇▇▇▇▇▇ LLPand ▇▇▇▇▇▇, special Cayman Islands counsel for the Loan PartiesBorrower, as substantially in the form of Exhibit B-2. Each of Intermediate Holdings and the Borrower hereby requests such counsel to deliver such matters opinions.
(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 or incorporation, existence and good standing of Intermediate Holdings and the Borrower, the authorization of the execution, delivery and performance of the Loan Documents by Intermediate Holdings and the Borrower and any other legal matters relating to Intermediate Holdings or the Borrower or the Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationcounsel.
(e) The Administrative Agent shall have received upfront fees from a certificate, dated the Borrower for Restatement Effective Date and signed by the account President, a Vice President or a Financial Officer of the Lenders providing Initial Term Loans Borrower, confirming compliance with the conditions set forth in the amounts previously agreed between the Borrower paragraphs (a) and the Administrative Agent(b) of Section 4.02.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either all fees and other amounts (i) a counterpart in respect of a Reaffirmation the Existing Credit Agreement signed on behalf (including all accrued and unpaid fees set forth in Section 2.11 of such party or the Existing Credit Agreement) and (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower due and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated payable on or prior to the Restatement Effective Date and (y) as Date, including in each case, to the satisfaction extent invoiced, reimbursement or payment of the conditions set forth in Section 4.02.
all reasonable out-of-pocket expenses (hincluding reasonable fees, charges and disbursements of counsel) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior required to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date be reimbursed or paid by the Administrative Agent Intermediate Holdings or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loansany Loan Document. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the effectiveness of the amendment and restatement of the Existing Credit Agreement and of 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 5:00 p.m., New York City time, on October 13, 2006 (and, in the event such conditions are not so satisfied or waived, the Commitments hereunder shall terminate at such time).
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated On the Restatement Effective Date, substantially the Original Credit Agreement shall be amended and restated in the form of Exhibit G with appropriate insertions, executed its entirety by any Responsible Officer of such Loan Party, this Agreement. The parties hereto acknowledge and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of agree that (i) each Organizational Document of each this Agreement and the other Loan Party certifiedDocuments, to the extent applicablewhether executed and delivered in connection herewith or otherwise, as of do not constitute a recent date by the applicable Governmental Authority, (ii) signature novation or repayment and incumbency certificates reborrowing of the Responsible Officers of each Loan Party executing Loans and other obligations under the Original Credit Agreement or the other Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and which remain outstanding as of the Restatement Effective Date, (yii) the Loans and other obligations under the Original Credit Agreement and the Security Documents are in all respects continuing (as amended and restated hereby and which are in all respects hereinafter subject to the satisfaction terms herein) and (iii) the liens and security interests as granted under the applicable Loan Documents securing payment of such the conditions set forth Loans and other obligations are in Section 4.02all respects continuing (without interruption) and in full force and effect and are reaffirmed hereby.
(hb) The Administrative Agent On and after the Lead Arranger Restatement Effective Date, (i) all references to the Original Credit Agreement or the Credit Agreement in the Loan Documents (other than this Agreement) shall have receivedbe deemed to refer to the Original Credit Agreement, at least five Business Days prior as amended and restated hereby, (ii) all references to any section (or subsection) of the Original Credit Agreement or the Credit Agreement in any Loan Document (but not herein) shall be amended to become, mutatis mutandis, references to the corresponding provisions of this Agreement and (iii) except as the context otherwise provides, on or after the Restatement Effective Date, all documentation references to this Agreement herein (including for purposes of indemnification and reimbursement of fees) shall be deemed to be reference to the Original Credit Agreement as amended and restated hereby.
(c) This amendment and restatement is limited as written and is not a consent to any other information about amendment, restatement or waiver or other modification, whether or not similar and, except as expressly provided herein or in any other Loan Document, all terms and conditions of the Loan Parties as Document remain in full force and effect unless otherwise specifically amended hereby or by any other Loan Document.
(d) Except to the extent specifically amended on the Restatement Effective Date, this amendment and restatement shall have been reasonably requested not alter, modify or in writing at least 10 Business Days any way amend the schedules and exhibits to the Original Credit Agreement (and such schedules and exhibits shall continue to be schedules and exhibits hereto).
(e) For the avoidance of doubt, any Default or Event of Default that occurred under the Original Credit Agreement prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of continuing on the Restatement Effective DateDate shall constitute a Default or Event of Default, and such notice shall be conclusive and bindingas applicable, under this Agreement.
Appears in 1 contract
Sources: Term Loan Facility Credit Agreement (Central European Media Enterprises LTD)
Restatement Effective Date. The obligations amendment and restatement of the Lenders Original Credit Agreement as set forth in Section 2 hereof, and the amendment and restatement of Exhibit A to make Loans hereunder the Original Credit Agreement as set forth in Section 2 hereof, shall be effective on such date after the Amendment Agreement Effective Date and on or prior to May 11, 2009 (the “Termination Date”) as shall have been specified by the Borrower to the Administrative Agent in a telephonic or written notice (such date, subject to the satisfaction or waiver of the conditions set forth below, being referred to as the “Restatement Effective Date shall not become effective until the date on which each of Date”); provided that the following conditions shall be have been satisfied as of such date (or waived by an agreement in accordance with Section 9.02writing entered into by the Administrative Agent, the Issuing Banks Agent, each Issuing Bank, each New Revolving Lender and each Extending Revolving Lender):
(a) The Administrative Agent (or its counsel) the Borrower shall have received from each other party thereto either (i) a counterpart of established the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & Collateral Account and shall have deposited, or substantially concurrently with the consummation of the transactions referred to in Section 3 hereof shall deposit, into the ▇▇ ▇▇▇▇ LLPCollateral Account an amount in cash equal to 105.00% of the aggregate LC Exposure of all the Issuing Banks as of the Restatement Effective Date;
(b) the Borrower shall have paid, special counsel for or substantially concurrently with the Loan Partiesconsummation of the transaction referred to in Section 3 hereof shall pay, all amounts required to be paid by it on the Restatement Effective Date pursuant to Section 3 hereof;
(c) the representations and warranties of the Borrower set forth in Section 6 hereof shall be true and correct as to such matters as of the Restatement Effective Date, and the Administrative Agent may reasonably request shall have received a certificate, dated the Restatement Effective Date and signed by the chief executive officer or a Financial Officer of the Borrower, confirming the accuracy thereof, which shall be in form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received, for account of the New Revolving Lenders and Extending Revolving Lenders (including the Specified Revolving Lenders) entitled thereto, the Restatement Effective Date Fees required to be paid pursuant to Section 11(b) hereof and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels Ticking Fees required to deliver such opinions.be paid pursuant to Section 11(c) hereof;
(ce) The the Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, all amounts due and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory payable to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as pursuant to the satisfaction Loan Documents, including reimbursement of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by the conditions Borrower hereunder or under any other Loan Document, and the Administrative Agent and its Affiliates, and the applicable Lenders, shall have received all amounts due and payable on or prior to the Restatement Effective Date pursuant to certain fee letter agreements entered into in connection with this Amendment and the transactions contemplated hereby, including reimbursement of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower pursuant to such letter agreements;
(f) each Subsidiary Loan Party shall have entered into a Reaffirmation Agreement in form and substance reasonably satisfactory to the Administrative Agent; and
(g) notwithstanding the notice requirements set forth in Section 4.02.
(h) The Administrative Agent and 5.11 of the Lead Arranger shall have receivedOriginal Credit Agreement, at least five Business Days if any Subsidiary has been formed or acquired within 10 days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as Borrower shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by notified the Administrative Agent of any such formation or acquisition; and the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by the chief executive officer or a Financial Officer of the Initial Term LoansBorrower, to such effect. It is agreed that, in the event any New Revolving Lender or any Extending Revolving Lender shall have failed on the date specified by the Borrower as set forth above to purchase or make any Loan required to be purchased or made by it pursuant to Section 3 hereof on such date if such date were the Restatement Effective Date (any such failure being referred to as a “Lender Default”; and any such New Revolving Lender or any such Extending Revolving Lender being referred to as a “Defaulting New Revolving Lender” or a “Defaulting Extending Revolving Lender”), then, unless agreed to otherwise in writing by the Borrower, the Administrative Agent, the Issuing Banks Agent, each Issuing Bank, each New Revolving Lender (other than any Defaulting New Revolving Lender) and each Extending Revolving Lender (other than any Defaulting Extending Revolving Lender), such date shall not, whether or not the conditions set forth above shall have been satisfied or waived, be deemed to be the “Restatement Effective Date” for all purposes of this Amendment (other than for purposes of determining liability, if any, of such Defaulting New Revolving Lender or such Defaulting Extending Revolving Lender to the Borrower on account of such failure); provided, however, that if, within three Business Days of such date, one or more Replacement Revolving Lenders (as defined below) shall have made and/or purchased the Loans that are the subject of all the Lender Defaults, then, subject to the satisfaction or waiver of the conditions set forth above, the date of such making or purchase of the Loans shall be the “Restatement Effective Date”. The Administrative Agent shall promptly notify Holdingsall the Extending Revolving Lenders and all the New Revolving Lenders of any Lender Default, and, to the extent necessary to give effect to this paragraph, the Borrower and the Lenders of the Restatement Effective Date, and such notice Termination Date shall be conclusive and bindingextended by not more than three Business Days.
Appears in 1 contract
Sources: Credit Agreement (Blockbuster Inc)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Restatement Agreement.Loan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit D.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPcovering such matters relating to the Borrower, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization and valid existence of each the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, the Loan PartyDocuments or the Transactions, dated all in form and substance satisfactory to the Restatement Effective Date, substantially Administrative Agent and its counsel and as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.D.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretary, an assistant secretary or a Responsible Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true and correct as being in full force and effect without modification or amendment, of such date and (ivii) a good standing certificate (to the extent that no Default or Event of Default has occurred and is continuing as of such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationdate.
(e) The Administrative Agent shall have received upfront fees from the Borrower received, for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart applicable Persons, payment of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in all accrued and unpaid interest and fees owing under the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or Existing Credit Agreement immediately prior to the Restatement Effective Date and (y) all principal of any “Swingline Loans” outstanding under and as to defined in the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days Existing Credit Agreement immediately prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The obligations Notwithstanding the execution and delivery of the Lenders to make Loans hereunder this Agreement on the Restatement Effective Date date hereof, this Agreement shall not become effective until effective, the date on which Existing Credit Agreement shall not be superseded as provided in Section 1.06, no commitment to make Credit Extensions shall arise and no Lender shall be required to make the initial Credit Extension hereunder each of the following conditions shall be has been satisfied (or waived in accordance with Section 9.02):
(a) ): The Administrative Agent (or its counsel) shall have received from (i) each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) each initial Subsidiary Guarantor either (A) a counterpart of the Restatement Agreement.
Subsidiary Guaranty signed on behalf of such Subsidiary Guarantor or (bB) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of the Subsidiary Guaranty) that such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty. The Administrative Agent shall have received a written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead ArrangerLoan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinions.
opinion. The Lenders shall have received satisfactory financial statement projections through and including the Borrower’s 2019 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (c) including, without limitation, a detailed description of the assumptions used in preparing such projections). The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers initial Loan Parties, the authorization of each the Transactions and any other legal matters relating to such Loan Party executing Parties, the Loan Documents to which it is a partyor the Transactions, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving all in form and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit G and (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreementii) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from to the chief financial officer or chief operating officer extent requested by any of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective DateLenders, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(i) . The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Initial Term LoansBorrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02. The Administrative Agent shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (other than contingent indemnity obligations). The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Restatement Effective Date. The amendments to the Original Credit Agreement effected hereby and the obligations of the Lenders to make Tranche B-1 Term Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from Holdings, the Borrower, the Required Lenders (as defined in the Original Credit Agreement) and each other party thereto Lender with a Tranche B-1 Term Loan Commitment either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇each of (i) S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇ LLP▇▇▇, special counsel for the Borrower, substantially in the form of Exhibit B-1, and (ii) local counsel in each jurisdiction where a Mortgaged Property or a Restatement Mortgaged Property is located, substantially in the form of Exhibit B-2, and, in the case of each such opinion required by this paragraph, covering such other matters relating to the Loan Parties, as to such matters the Loan Documents or the Restatement Transactions as the Administrative Agent may Required Lenders shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, dated the authorization of the Restatement Effective DateTransactions and any other legal matters relating to the Loan Parties, substantially the Loan Documents or the Restatement Transactions, all in form and substance satisfactory to the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, Administrative Agent and including or attaching the documents referred to in paragraph (d) of this Sectionits counsel.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretarythe President, an assistant secretary a Vice President or a Responsible Financial Officer as being of the Borrower, confirming compliance with the conditions set forth in full force and effect without modification or amendment, paragraphs (a) and (ivb) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationSection 4.02.
(e) The Administrative Agent shall have received upfront all fees from the Borrower for the account of the Lenders providing Initial Term Loans in the and other amounts previously agreed between the Borrower due and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral Agent shall have received executed supplements to the Pledge Agreement from each Subsidiary Loan Party formed in connection with or resulting from the Restatement Acquisition, together with stock certificates representing all the outstanding shares of capital stock of the Borrower and each Subsidiary owned by or on behalf of any Loan Party as of the Restatement Effective Date after giving effect to the Restatement Transactions (except that stock certificates representing shares of common stock of a Foreign Subsidiary may be limited to 65% of the outstanding shares of common stock of such Foreign Subsidiary), promissory notes evidencing all intercompany Indebtedness owed to any Loan Party by Holdings, the Borrower or any Subsidiary as of the Restatement Effective Date after giving effect to the Restatement Transactions and stock powers and instruments of transfer, endorsed in blank, with respect to such stock certificates and promissory notes.
(g) The Collateral Agent shall have received executed supplements to the Security Agreement from each Subsidiary Loan Party formed in connection with or resulting from the Restatement Acquisition, together with the following:
(i) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Security Agreement after giving effect to the Restatement Transactions; and
(ii) a completed Perfection Certificate dated the Restatement Effective 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 (yor equivalent) as filings made with respect to the satisfaction Loan Parties (including any Subsidiary Loan Parties formed in connection with or resulting from the Restatement Acquisition) in the jurisdictions contemplated by the Perfection Certificate and copies of the conditions set forth in Section 4.02financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agent that the Liens indicated by such financing statements (or similar documents) are permitted by the Security Agreement or have been released.
(h) The Administrative Collateral Agent and the Lead Arranger shall have received, at least five Business Days prior received (i) amendments to each Mortgage executed in connection with the Original Credit Agreement providing that the Tranche B-1 Loans (in addition to the other Obligations) shall be secured by a Lien on each Mortgaged Property, signed on behalf of the record owner of such Mortgaged Property, (ii) counterparts of a Mortgage with respect to each Restatement Effective DateMortgaged Property signed on behalf of the record owner of such real property, all documentation and (iii) 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 or Restatement Mortgaged Property, as the case may be, described therein, free of any other information about the Loan Parties Liens except as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date permitted by the Administrative Security Agreement, together with such endorsements, coinsurance and reinsurance as the Collateral Agent or the Lead Arranger that they shall have Required Lenders may reasonably determined is request, and (iv) such surveys, abstracts and appraisals as may be required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation pursuant to such Mortgages or as the USA Patriot ActCollateral Agent or the Required Lenders may reasonably request.
(i) The Administrative Agent shall have received a Borrowing Request requesting executed supplements to (i) the borrowing Guarantee Agreement from each Subsidiary Loan Party formed in connection with or resulting from the Restatement Acquisition and (ii) the Indemnity, Subrogation and Contribution Agreement from each Subsidiary Loan Party formed in connection with or resulting from the Restatement Acquisition.
(j) The Administrative Agent shall have received evidence that the insurance required by Section 5.07 and the Security Documents is in effect.
(k) All consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the Restatement Acquisition shall have been obtained, and all applicable waiting periods and appeal periods shall have expired, in each case without the imposition of any burdensome conditions. The Restatement Acquisition shall have been, or substantially simultaneously with the initial funding of the Initial Tranche B-1 Term LoansLoans on the Restatement Effective Date shall be, consummated in accordance with the Purchase Agreement, the Non-Compete Agreement and applicable law, without any amendment to or waiver of any material terms or conditions of either the Purchase Agreement or the Non-Compete Agreement not approved by the Administrative Agent. The Administrative Agent shall have received copies of the Purchase Agreement, the Non-Compete Agreement and all certificates, opinions and other documents delivered thereunder, certified by a Financial Officer as complete and correct.
(l) The Administrative Agent shall have received audited financial statements of each of GCC and GII and their respective subsidiaries, prepared in accordance with Canadian GAAP, for the fiscal year ended August 31, 1999, which audited financial statements shall not be inconsistent in any material respect with the information relating to each of GCC and GII and their respective subsidiaries previously provided to the Lenders.
(m) The Lenders shall have received a pro forma consolidated balance sheet of each of Holdings and the Borrower as of June 28, 1999, reflecting all pro forma adjustments as if the Restatement Transactions had been consummated on such date, and such pro forma consolidated balance sheet shall not be materially inconsistent with the forecasts and other information previously provided to the Lenders.
(n) After giving effect to the Transactions, none of the Acquired Businesses or any of their subsidiaries shall have outstanding any shares of preferred stock or any material Indebtedness except for Indebtedness incurred under the Loan Documents.
(o) The Required Lenders shall be reasonably satisfied with any material changes to the capitalization, structure and equity ownership of Holdings, the Borrower and its subsidiaries, after giving effect to the Restatement Transactions, from the capitalization, structure and equity ownership set forth in the information previously supplied to the Lenders with respect thereto.
(p) The Administrative Agent shall have been afforded the opportunity to review all other documentation relating to the Restatement Transactions and the other transactions contemplated hereby, including, without limitation, any employment agreement, management compensation arrangement, indemnification arrangement or financing arrangement of Holdings, the Borrower or any of its subsidiaries, and shall be reasonably satisfied in all respects with such documentation and reasonably satisfied that no member of management of Holdings or the Borrower shall be subject to any noncompete agreement or other similar agreement or arrangement with any other person.
(q) The Required Lenders shall be reasonably satisfied in all respects that there has not occurred any material adverse change in the business assets, operations, properties, financial condition, or prospects of (i) Holdings, the Borrower and its subsidiaries, taken as a whole since June 30, 1999 or (ii) the Acquired Businesses and their subsidiaries, taken as a whole since August 31, 1999. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective 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 Tranche B-1 Term Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on November 30, 1999 (and, in the event such conditions are not so satisfied or waived, the Tranche B-1 Commitments shall terminate and the Original Credit Agreement shall remain in effect without giving effect to any amendments thereto contemplated hereby).
Appears in 1 contract
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02the date such conditions are satisfied, the “Restatement Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received from the Required Lenders (under and as defined in the Original Credit Agreement), each other party thereto Lender with a Tranche A Term Commitment and each Lender with a Revolving Commitment either (iA) a counterpart of the Restatement Agreement signed on behalf of such party or (iiB) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent (or its counsel) shall have received from each Guarantor either (A) a counterpart of the Guaranty signed on behalf of such Guarantor or (B) written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance evidence reasonably satisfactory to the Administrative Agent and (which may include telecopy or electronic mail transmission in accordance with Section 9.01(b) of a signed signature page of the Lead Arranger. Each Guaranty) that such party signed a counterpart of Holdings and the Borrower hereby requests such counsels to deliver such opinionsGuaranty.
(c) The Administrative Agent shall have received a signed certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any a Responsible Officer stating that the conditions set forth in Section 4.02 are satisfied as of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Sectiondate.
(d) The Administrative Agent shall have received a copy the executed legal opinions of (i) each Organizational Document of each Loan Party certified▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the extent applicable, as of a recent date by the applicable Governmental AuthorityBorrower, (ii) signature CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, local counsel to the Guarantors in the United Kingdom and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of ▇▇▇▇▇ ▇▇▇▇▇, local counsel to Parent in Jersey, in each Loan Party approving and authorizing the executioncase, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (form reasonably satisfactory to the extent Administrative Agent. The Borrower Agent hereby requests such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationcounsel to deliver such opinions.
(e) The Administrative Agent shall have received upfront fees from such customary closing documents and certificates as the Borrower for Administrative Agent or its counsel may reasonably request relating to the account organization, existence and good standing of the Lenders providing Initial Term Loans initial Loan Parties, the authorization of the Transaction and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in the amounts previously agreed between the Borrower form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to To the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from extent reasonably requested in writing by the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, Lenders at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as Lenders shall have been reasonably requested in writing at least 10 Business Days received on or prior to the Restatement Effective Date by all documentation and other information in order to allow the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Lenders to comply with the USA Patriot PATRIOT Act.
(ig) The Administrative Agent and the Arrangers shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower all fees and the Lenders of other amounts due and payable on or prior to the Restatement Effective Date, and such notice shall including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be conclusive and bindingreimbursed or paid by the Borrowers hereunder.
Appears in 1 contract
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from Lenders constituting the Required Lenders (under and as defined in the Original Credit Agreement), the Administrative Agent, the Former Agent the Borrower, and each other party thereto Lender with an Additional Term A Loan Commitment either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent and in connection with the Lenders and dated transactions contemplated by the Restatement Effective Date) to ensure the continued validity, enforceability and priority of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan PartiesDocuments after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters other documents as the Administrative Agent may have reasonably request and requested in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsconnection therewith.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated All accrued interest and fees payable hereunder through the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this SectionDate shall have been paid.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower a consent fee payable for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Lender that has returned an executed signature page to this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date equal to 0.025% of the sum of (x) the aggregate principal amount of Term Loans, if any, held by such Lenders as of the Restatement Effective Date and (y) as to the satisfaction aggregate amount of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have receivedRevolving Facility Commitments, at least five Business Days prior to the Restatement Effective Dateif any, all documentation and other information about the Loan Parties of such Lenders as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Restatement Effective Date. The obligations amendments of the Restated Credit Agreement effected hereby and the Term D Commitments of the Term D Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date (the “Restatement Effective Date”) on which each of the following conditions shall be and the conditions in Section 4.02 are satisfied (or waived in accordance with Section 9.02):the terms hereof): Table of Contents
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) the Requisite Lenders (as defined in the Restated Credit Agreement) an original or telecopy transmission of a counterpart signed consent to the amendment and restatement of the Restated Credit Agreement to occur on the Restatement Agreement signed on behalf of such party or Effective Date, (ii) written evidence satisfactory Term D Lenders, original or telecopy transmissions of Lender Addendums providing aggregate commitments (or, in the case of Term C Lenders, with respect to Term C Loans to be converted pursuant to Section 1.04(c), a signed consent to the Administrative Agent amendment and restatement of the Restated Credit Agreement to occur on the Restatement Effective Date) with respect to the entire aggregate principal amount of the Term D Commitments and (which may include facsimile iii) Holdings and each Borrower, an original or other electronic telecopy transmission of a signed counterpart of to this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent such documents and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the amendment effected hereby, the borrowing of and conversion to the Term D Loans, the repayment of the Term A Loans and the repayment or conversion of the Term C Loans and the other transactions contemplated hereby and any other legal matters relating to the Loan Parties or the Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsits counsel.
(c) The Administrative Agent shall have received a certificate of each Loan Partycertificate, dated the Restatement Effective DateDate and signed by the President, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible a Vice President or a Financial Officer of such Loan PartyHoldings, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of confirming compliance with the conditions set forth in this Section 4.01 and Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Consolidated Communications Illinois Holdings, Inc.)
Restatement Effective Date. This Agreement shall become effective on the Restatement Effective Date when the Agent shall have received either (a) a counterpart of this Agreement signed on behalf of each party hereto or (b) written evidence reasonably satisfactory to the Agent (which may include a facsimile transmission or electronic image of a signed signature page of this Agreement) that each such party has signed a counterpart of this Agreement. The obligations of the Lenders to make Loans hereunder to, and of the Issuing Banks to issue Letters of Credit for the account of, each Borrower shall become effective on the Restatement Effective Date shall not become effective until upon the date on which satisfaction of each of the following conditions shall be satisfied precedent with respect to such Borrower (or waived the waiver of such conditions in accordance with Section 9.02):8.2) and the delivery by such Borrower to the Agent of the items specified below:
(i) Certification from a secretary or an assistant secretary of such Borrower that (a) The Administrative Agent (the articles or its counsel) shall have received from each other party thereto either (i) a counterpart certificate of incorporation and the Restatement Agreement signed on behalf by-laws of such party Borrower have not been modified since the Closing Date, or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent copies of such articles or certificate of incorporation and the Lenders by-laws attached thereto are true, complete and dated the Restatement Effective Date) correct copies thereof, and, in each case, that such documents are in full force and effect as of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially and a certificate of good standing with respect to such Borrower from the appropriate governmental officer in the form its jurisdiction of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Sectionincorporation.
(dii) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedCopies, to the extent applicable, as of a recent date certified by the applicable Governmental Authoritysecretary or assistant secretary of such Borrower, (ii) signature of its Board of Directors’ resolutions and incumbency certificates of the Responsible Officers resolutions or actions of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it such Borrower is a party.
(iii) An incumbency certificate, executed or certified by the secretary or assistant secretary of such Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Borrower authorized to sign the Loan Documents to which such Borrower is a party, certified as upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Borrower.
(iv) A certificate, signed by an Authorized Officer of such Borrower, stating that on the Restatement Effective Date by its secretary, an assistant secretary (a) no Default or a Responsible Officer as being in full force Unmatured Default has occurred and effect without modification or amendment, is continuing and (ivb) a good standing certificate all of the representations and warranties contained in Article V are true and correct (i) in the case of the representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each case as of such date except to the extent any such concept exists) from the applicable Governmental Authority representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of each Loan Party’s jurisdiction of incorporation, organization or formationsuch earlier date.
(ev) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf Written opinions of such party or (ii) written evidence Borrower’s in-house counsel, in each case in form and substance satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from and addressed to the chief financial officer or chief operating officer of the Borrower (x) Lenders, in substantially the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on A-1 or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02A-2.
(hvi) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior Any Notes requested by Lenders pursuant to the Restatement Effective Date, all Section 2.14 payable to each such requesting Lender.
(vii) All documentation and other information about the Loan Parties as that any Lender shall reasonably have been reasonably requested in writing at least 10 Business Days prior order to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(iviii) The Administrative Agent shall have received a Borrowing Request requesting the borrowing Payment by such Borrower of the Initial Term Loans. The Administrative Agent shall notify Holdings, principal of all Loans outstanding under the Borrower Existing Illinois Credit Agreement (it being understood that the Existing Letters of Credit will remain outstanding and the Lenders of be deemed issued hereunder) on the Restatement Effective Date, and all interest, fees and other amounts accrued or owing for its account under the Existing Illinois Credit Agreement, whether or not such notice shall amounts are due and payable at the time under such agreement (it being understood that such payment may be conclusive and bindingeffected with the proceeds of borrowings hereunder on the Restatement Effective Date).
(ix) Such other documents as any Lender or its counsel may have reasonably requested.
Appears in 1 contract
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto Term A-1 Lender and each Deferred Term A Lender, in each case, set forth on Schedule 2.01, the Required Lenders, each Borrower, and the Administrative Agent, either (i) a counterpart of (or, in the Restatement case of the Lenders, a consent to) this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of (or, in the Restatement case of the Lenders, a consent to) this Agreement. Each Term A-1 Lender and each Deferred Term A Lender, by submitting a consent to the Pro Rata Extension Offer, dated April 15, 2020, has consented to this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent in connection with the transactions contemplated by the Restatement to ensure the continued validity, enforceability and priority of the Lenders Loan Documents after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and dated other documents as the Administrative Agent may have reasonably requested in connection therewith.
(c) All accrued interest and fees payable hereunder through the Restatement Effective Date shall have been paid.
(d) The Administrative Agent shall have received from the Company an upfront fee payable for the account of each Term A-1 Lender and each Deferred Term A Lender, in each case, set forth on Schedule 2.01 equal to 0.25% of the aggregate principal amount of such Lender’s Existing Loans outstanding immediately prior to the Restatement Effective Date.
(e) The Administrative Agent shall have received (or be reasonably satisfied that it will receive promptly after the funding of Loans on the Restatement Effective Date), on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York special counsel for the Loan Parties, and ▇▇(ii) Walkers (Bermuda) Limited, Bermuda counsel for the Loan Parties, (iii) ▇▇▇▇▇ ▇▇▇▇▇ & JSM, ▇▇▇▇▇▇▇▇ LLPIslands counsel for the Loan Parties and (iv) ▇▇▇▇▇ ▇▇▇▇▇, special maritime counsel for the Loan Parties, as in each case (A) dated the Restatement Effective Date, (B) addressed to such matters as each Issuing Bank, the Administrative Agent, the Collateral Agent may reasonably request and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead Arranger. Each of Holdings and Loan Documents as the Borrower hereby requests such counsels to deliver such opinionsAdministrative Agent shall reasonably request.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, Party dated the Restatement Effective DateDate and certifying:
(i) a copy of the certificate or articles of incorporation, substantially in the form certificate of Exhibit G with appropriate insertionslimited partnership, executed by any Responsible Officer certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, and including or attaching the documents referred to (1) if available from an official in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedsuch jurisdiction, to the extent applicable, certified as of a recent date by the applicable Governmental AuthoritySecretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) signature and incumbency certificates a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of the Responsible Officers such jurisdiction) of each such Loan Party executing the Loan Documents to which it is as of a party, recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors and/or similar (or equivalent governing bodies body) of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified dated as of the Restatement Effective Date by its secretaryto which such person is a party and, an assistant secretary in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or a Responsible Officer as being amended and are in full force and effect without modification or amendment, and on the Restatement Effective Date,
(ivv) a good standing certificate (as to the extent such concept exists) from the applicable Governmental Authority incumbency and specimen signature of each officer executing any Loan Party’s jurisdiction of incorporation, organization Document or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans any other document delivered in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed connection herewith on behalf of such party or Loan Party, and
(iivi) written evidence satisfactory as to the Administrative Agent (which may include facsimile absence of any pending proceeding for the dissolution or other electronic transmission liquidation of a signed counterpart such Loan Party or, to the knowledge of a Reaffirmation Agreement) that such party has signed a counterpart person, threatening the existence of a Reaffirmation Agreement.such Loan Party;
(g) The Administrative Agent Lenders shall have received a solvency certificate from the chief financial officer or chief operating officer of the Borrower (x) substantially in the form of Exhibit Q certifying as to the solvency C and signed by a Financial Officer of the Borrower and its Subsidiaries on a consolidated basis after giving effect Company.
(h) JPMorgan Chase Bank, N.A. shall have received all fees payable thereto or to the Transactions to be consummated any Lender on or prior to the Restatement Effective Date and (y) as and, to the satisfaction extent invoiced at least three Business Days prior to the Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇ (Bermuda) Limited, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the conditions set forth in Section 4.02Loan Parties hereunder or under any Loan Document.
(hi) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five three Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActPATRIOT Act that has been requested by the Administrative Agent in writing at least ten Business Days prior to the Restatement Effective Date and (ii) to the extent a Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to each Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) The On and as of the Restatement Effective Date, the representations and warranties of the Borrower and each other Loan Party set forth in Sections 4.01(b) and 4.01(c) hereof shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) and (ii) the Administrative Agent shall have received a Borrowing Request requesting the borrowing certificate from a Responsible Officer of the Initial Borrower certifying as to the matters set forth in Sections 4.01(b) and 4.01(c) hereof.
(k) The Company shall have consummated one or more debt or equity financings (other than debt secured by a Lien on the Collateral secured on an equal priority basis with the Liens securing the Obligations) not prohibited by the terms of the Loan Documents, resulting in at least $1.0 billion of aggregate gross proceeds to the Company and/or its subsidiaries; provided that (i) the final maturity date or mandatory redemption date of any such debt or equity shall be no earlier than the Revolving Facility Maturity Date or the Term Loans. The Administrative Agent A Loan Maturity Date and (ii) in the case of any debt financings, (a) such debt shall notify Holdingsnot be subject to covenants, events of default, Subsidiary guarantees and other terms (other than interest rate and redemption premiums) that, taken as a whole, are more restrictive to the Company and its Subsidiaries than the terms of the Senior Unsecured Notes Documents (or if more restrictive, the Borrower Loan Documents shall be amended to contain such more restrictive terms (which amendments shall automatically occur)), (b) such debt shall not be subject to any financial maintenance covenants and (c) such debt shall have a weighted average life to maturity greater than the Lenders remaining weighted average life to maturity of the outstanding Revolving Facility Loans and Term A Loans.
(i) On the Restatement Effective Date, the Collateral Agent shall have received (a) counterparts of each Amendment to Vessel Mortgage in respect of any ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel duly executed and delivered by the registered owner of such Mortgaged Vessel and the Mortgage Trustee suitable for recordation with the central office of the Maritime Administrator for the Republic of the ▇▇▇▇▇▇▇▇ Islands in New York City (the “Maritime Administrator’s Office”), (b) evidence that each Amendment to Vessel Mortgage in respect of any ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel has been (or will, promptly following the Restatement Effective Date, be) duly registered with the Maritime Administrator’s Office in accordance with the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands and such notice other evidence that the Mortgage Trustee may deem necessary and that all registration fees in connection therewith have been duly paid; (ii) On or promptly following the Restatement Effective Date, a Certificate of Ownership and Encumbrances issued by the Maritime Administrator’s Office stating that such ▇▇▇▇▇▇▇▇ Islands flagged Mortgage Vessel is owned by the Subsidiary Guarantor and showing that there are of record no other liens or encumbrances on such ▇▇▇▇▇▇▇▇ Islands flagged Mortgaged Vessel except the Vessel Mortgage as amended by the Amendment in favor of the Mortgage Trustee; (iii) Such other documents, including any consents, agreements or confirmation of third parties as may be required under any Amendment to the Mortgages in respect of the ▇▇▇▇▇▇▇▇ Islands flagged Mortgage Ships or otherwise as the Collateral Agent or the Mortgage Trustee may reasonably request; and (iv) the Administrative Agent shall have received (or be reasonably satisfied that it will received promptly after the funding of the Loans on the Restatement Effective Date) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Islands counsel to the Loan Parties. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be conclusive deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Restatement Effective Date specifying its objection thereto and bindingsuch Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Restatement Effective Date. The obligations Notwithstanding any other provision hereof, the right of the Lenders to make Loans hereunder on the Restatement Effective Date recovery against each Guarantor under Section 2 hereof shall not become effective until exceed $1.00 less than the date on lowest amount which each of would render such Guarantor’s obligations under Section 2 hereof void or voidable under applicable law, including, without limitation, fraudulent conveyance law. To effectuate the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to foregoing intention, the Administrative Agent and the Lenders and dated Guarantors hereby irrevocably agree that the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate Obligations of each Loan Party, dated Guarantor under the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions guarantee set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger 2 hereof at any time shall have received, at least five Business Days prior be limited to the Restatement Effective Datemaximum amount as will result in the Obligations of such Guarantor under the guarantee set forth in Section 2 hereof not constituting a fraudulent transfer or conveyance after giving full effect to the liability under the guarantee set forth in Section 2 hereof and its related contribution rights but before taking into account any liabilities under any other guarantee by such Guarantor. To the extent that any Guarantor shall be required hereunder to pay any portion of any guaranteed obligation exceeding the greater of (a) the amount of the value actually received by such Guarantor and its Subsidiaries (other than the Borrower) from the Loans and such other obligations and (b) the amount such Guarantor would otherwise have paid if such Guarantor had paid the aggregate amount of the guaranteed obligations (excluding the amount thereof repaid by the Borrower) in the same proportion as such Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the Guarantors on such date, then such Guarantor shall be reimbursed by such other Guarantors for the amount of such excess, pro rata, based on the respective net worth of such other Guarantors on such date. For purposes of determining the net worth of any Guarantor in connection with the foregoing, all documentation guarantees of such Guarantor other than the guarantee under Section 2 hereof will be deemed to be enforceable and other information about payable after the Loan Parties as guarantee under Section 2 hereof. To the fullest extent permitted by applicable law, this Section 2.1(b) shall have been reasonably requested in writing at least 10 Business Days prior to be for the Restatement Effective Date by benefit solely of creditors and representatives of creditors of each Guarantor and not for the Administrative Agent benefit of such Guarantor or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Actholders of any equity interest in such Guarantor.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Third Amendment Agreement (KAR Auction Services, Inc.)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each other party thereto hereto and the Departing Lender either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Restatement Agreement.Loan Documents and such other legal opinions, certificates and organizational documents as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit D.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Stoel Rives LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPcovering such matters relating to the Borrower, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization and valid existence of each the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, the Loan PartyDocuments or the Transactions, dated all in form and substance satisfactory to the Restatement Effective Date, substantially Administrative Agent and its counsel and as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.D.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretary, an assistant secretary or a Responsible Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true and correct as being in full force and effect without modification or amendment, of such date and (ivii) a good standing certificate (to the extent that no Default has occurred and is continuing as of such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationdate.
(e) The Administrative Agent shall have received upfront fees from the Borrower received, for the account of the Lenders providing Initial Term Loans in applicable Persons, payment of all accrued and unpaid interest and fees owing under the amounts previously agreed between Existing Credit Agreement immediately prior to the Borrower and the Administrative AgentRestatement Effective Date.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed all fees and other amounts due and payable on behalf of such party or (ii) written evidence satisfactory prior to the Administrative Agent (which may include facsimile Restatement Effective Date, including, to the extent invoiced, reimbursement or other electronic transmission payment of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementall out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received a certificate from the chief (i) satisfactory audited consolidated financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency statements of the Borrower and its Subsidiaries on a consolidated basis after giving effect to for the Transactions to be consummated on or two most recent fiscal years ended prior to the Restatement Effective Date as to which such financial statements are available and (yii) satisfactory unaudited interim consolidated financial statements of the Borrower and its Subsidiaries on a consolidated basis for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) as to the satisfaction of the conditions set forth in Section 4.02which such financial statements are available.
(hi) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days days prior to the Restatement Effective DateDate (or such shorter period agreed to by the Administrative Agent in its sole discretion), all documentation and other information about regarding the Loan Parties as shall have been reasonably Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Restatement Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(i) The Administrative Agent shall have received a Borrowing Request requesting such other documents as the borrowing of Administrative Agent or the Initial Term LoansRequired Lenders (through the Administrative Agent) may reasonably request. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the 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 3:00 p.m., New York City time, on November 3, 2025 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) hereto a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory which, subject to the Administrative Agent (which Section 9.06(b), may include facsimile any Electronic Signatures transmitted by fax, emailed pdf, or any other electronic transmission means that reproduces an image of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreementan actual executed signature page).
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPcovering such matters relating to the Borrowers, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request. The Borrowers hereby request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate 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 Borrowers, the authorization of the Transactions and any other legal matters relating to the Borrowers, the Loan PartyDocuments or the Transactions, dated all in form and substance satisfactory to the Restatement Effective Date, substantially Administrative Agent and its counsel and as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.F.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretarythe President, an assistant secretary a Vice President or a Responsible Financial Officer as being of each Borrower, confirming compliance with the conditions set forth in full force and effect without modification or amendment, paragraphs (a) and (ivb) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationSection 4.02.
(e) The Administrative Agent shall have received upfront all fees from and other amounts due and payable on or prior to the Borrower for Restatement Effective Date, including, to the account extent invoiced at least one (1) Business Day prior to the Restatement Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Lenders providing Initial Term Loans in Borrowers hereunder (including the amounts previously agreed between the Borrower reasonable fees and the Administrative Agentexpenses of legal counsel).
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory the financial statements referred to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementin Section 3.04(a).
(gi) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days (5) days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably regarding each Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of any Borrower at least five (5) days prior to the Restatement Effective Date and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Restatement Effective Date, the Administrative Agent or any Lender that has requested, in a written notice to such Borrower at least five (5) days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to such Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(ih) The Administrative Agent and the Borrowers shall have received a Borrowing Request requesting made arrangements for the borrowing payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all Loans outstanding (immediately prior to the Initial Term LoansRestatement Effective Date) under the Existing Credit Agreement (other than contingent indemnity obligations). The Administrative Agent shall notify Holdings, the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the 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 3:00 p.m., New York City time, on September 22, 2025 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (H2o America)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date This Agreement shall not become effective until on and as of the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto Borrower and the Required Lenders either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent such documents and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowers, the authorization of the Transactions and any other legal matters relating to the Borrowers, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsits counsel.
(c) The Administrative Agent shall have received a certificate of each Loan Partycertificate, dated the Restatement Effective DateDate and signed by the President, substantially a Vice President or a Financial Officer of the U.S. Borrower, confirming that (i) the representations and warranties of the Borrowers set forth in the form Loan Documents are true and correct on and as of Exhibit G with appropriate insertionsthe Restatement Effective Date and (ii) after giving effect to the amendments contained herein, executed by any Responsible Officer of such Loan Party, no Default has occurred and including or attaching the documents referred to in paragraph (d) of this Sectionis continuing.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature all fees and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving other amounts due and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated payable on or prior to the Restatement Effective Date Date, including, (i) to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the U.S. Borrower hereunder and (yii) as an amendment fee equal to the satisfaction 0.30% of the conditions set forth in Section 4.02.
Commitment (has reduced by this Agreement) The Administrative Agent of each Lender that has executed and the Lead Arranger shall have received, at least five Business Days prior delivered to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsa counterpart to this Agreement prior to 5:00 p.m., including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term LoansMinneapolis time, on June 22, 2009. The Administrative Agent shall notify Holdings, the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Miller Herman Inc)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on and the Restatement Effective Date obligation of each LC Issuer to issue Letters of Credit shall not become effective until the date (the "Restatement Effective Date") on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.0211.02):
(a) The Administrative Agent (On or its counsel) shall have received from each other party thereto either prior to the Restatement Effective Date, (i) a counterpart each of the Restatement Agreement Company, each Designated Subsidiary Borrower listed on Schedule 2.17, the Administrative Agent and each of the Lenders shall have signed on behalf of such party a copy hereof (whether the same or (iidifferent copies) written evidence satisfactory and shall have delivered the same to the Administrative Agent in accordance with Section 11.01(a) or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (which may include confirmed in writing), written or facsimile or other electronic transmission of a signed counterpart of this Agreementnotice (actually received) in accordance with Section 11.01(a) that such party the same has been signed a counterpart and mailed to the Administrative Agent; and (ii) there shall have been delivered to the Administrative Agent for the account of each Lender that has requested the Restatement Agreementsame pursuant to Section 2.07(e) the appropriate promissory note or promissory notes, executed by the Company, in each case, in the amount, maturity and as otherwise provided herein.
(b) The On the Restatement Effective Date, the Administrative Agent shall have received written opinions (i) an opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for to the Loan PartiesBorrowers, which opinion shall cover the matters contained in Exhibit H-1 hereto, (ii) an opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders and dated the Restatement Effective Date, from ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda counsel to the Borrowers, which opinion shall cover the matters covered in Exhibit H-2 hereto and without duplication (iii) opinions from counsel to each Designated Subsidiary Borrower existing on the Restatement Effective Date in form and substance reasonably satisfactory to the Administrative Agent, from counsel to such Designated Subsidiary Borrowers reasonably satisfactory to the Administrative Agent, covering such of the matters set forth in the opinion of counsel delivered to the Administrative Agent on the Restatement Effective Date pursuant to immediately preceding clauses (i) and (ii) above, as may be reasonably requested by the Administrative Agent, and such other matters incident to the transactions contemplated thereby as the Administrative Agent may reasonably request.
(i) On the Restatement Effective Date, the Administrative Agent shall have received, from each Borrower, a certificate, dated the Restatement Effective Date, signed by an Authorized Officer of such Borrower, and attested to by the Secretary or any Assistant Secretary of such Borrower, in the form of Exhibit F hereto with appropriate insertions and deletions, together with (x) copies of its certificate of incorporation, by-laws or other organizational documents (or, if such organizational documents and/or by- laws have not been amended, modified or supplemented since the Original Effective Date such certificate shall certify that there have been no amendments, modifications or supplements to such organizational documents since the Original Effective Date) and (y) the resolutions of the board of directors of such Borrower relating to the Credit Documents which shall be satisfactory to the Administrative Agent.
(ii) On or prior to the Restatement Effective Date, all corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Credit Documents shall be reasonably satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all certificates, documents and papers, including certificates of existence or good standing certificates, as applicable, and any other records of corporate proceedings and governmental approvals, if any, which the Administrative Agent reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper corporate or governmental authorities.
(d) Since December 31, 2004, nothing shall have occurred or become known to the Administrative Agent or the Required Lenders which has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(e) On the Restatement Effective Date, no actions, suits or proceedings by any entity (private or governmental) shall be pending against the Company or any of its Subsidiaries (i) with respect to this Agreement, any other Credit Document, the Transaction or (ii) which has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) On the Restatement Effective Date, all governmental and third party approvals, permits and licenses required to be obtained in connection with the Transaction on or prior to the Restatement Effective Date shall have been obtained and remain in full force and effect.
(g) On the Restatement Effective Date, the Company and its Subsidiaries shall have no outstanding preferred stock or Indebtedness except (x) the Loans, and (y) preferred stock or Indebtedness set forth on Schedule 4.15.
(h) On the Restatement Effective Date, there shall exist no Default or Event of Default, and all representations and warranties made by each Borrower contained herein or in any other Credit Document to which it is a party shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
(i) On the Restatement Effective Date, each Regulated Insurance Company which has a rating in effect on the Closing Date shall have an A.M. Best financial strength rating of at least "A-". 55
(j) On the Restatement Effective Date, the Company shall have paid the Administrative Agent and the Lenders all fees, reasonable out-of-pocket expenses (including, without limitation, legal fees and expenses of the Administrative Agent) and other compensation contemplated by this Agreement and the other Credit Documents, agreed upon by such parties to be paid on or prior to the Restatement Effective Date.
(k) On or prior to the Restatement Effective Date, the Administrative Agent shall have received (i) duly authorized and executed counterparts to the Security Agreement Acknowledgement in the form of Exhibit D-2 (the "Security Agreement Acknowledgement") and each of the Security Agreement Acknowledgement and the Security Agreement shall be in full force and effect and (ii) duly authorized and executed counterparts to the Account Control Agreement Acknowledgement in the form of Exhibit I-2 (the "Account Control Agreement Acknowledgement") and each of the Account Control Agreement Acknowledgement and the Account Control Agreement shall be in full force and effect.
(l) On or prior to the Restatement Effective Date, the Administrative Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements where applicable, required by law in each applicable jurisdiction or reasonably requested by the Administrative Agent to be filed, registered or recorded to create, perfect or maintain the Liens intended to be created under the Security Agreement.
(m) On or prior to the Restatement Effective Date, the Administrative Agent shall have received results of a recent search of the Uniform Commercial Code (or equivalent) filings made with respect to each Borrower in the jurisdictions contemplated in clause (l) above (including, without limitation, Washington, D.C., and Bermuda) and in such other jurisdictions in which Collateral is located on the Effective Date which may be reasonably requested by the Administrative Agent, 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 the Security Agreement or have been released.
(n) On the Restatement Effective Date, the letter received by the Administrative Agent on the Original Effective Date from the Service of Process Agent, presently located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, special counsel for ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, indicating its consent to its appointment by the Loan Parties, Company and each Designated Subsidiary Borrower as their agent to such matters receive service of process as the Administrative Agent may reasonably request specified in this Agreement shall be in full force and effect and shall apply to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsall respects.
(co) The Administrative Agent shall have received a certificate of each Loan Party, dated On the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by Company shall have repaid in full all loans outstanding under the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of Existing Credit Agreement on the Restatement Effective Date by its secretaryDate, an assistant secretary or a Responsible Officer as being in full force together with all accrued and effect without modification or amendmentunpaid interest, fees and commitment commission (ivand any other amounts) a good standing certificate (to owing under the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Existing Credit Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to through the Restatement Effective Date and (yii) as each lender under the Existing Credit Agreement shall have received payment in full of all amounts then due and owing to it under the satisfaction of the conditions set forth in Section 4.02Existing Credit Agreement.
(hp) The Administrative Agent and On the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as any Existing Lender that will not be a Lender under this Agreement shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loansexecuted an Exiting Lender Agreement. The Administrative Agent shall notify Holdings, the Borrower Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated On the Restatement Effective Date, substantially the Original Credit Agreement shall be amended and restated in the form of Exhibit G with appropriate insertions, executed its entirety by any Responsible Officer of such Loan Party, this Agreement. The parties hereto acknowledge and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of agree that (i) each Organizational Document of each this Agreement and the other Loan Party certifiedDocuments, to the extent applicablewhether executed and delivered in connection herewith or otherwise, as of do not constitute a recent date by the applicable Governmental Authority, (ii) signature novation or repayment and incumbency certificates reborrowing of the Responsible Officers of each Loan Party executing Loans and other obligations under the Original Credit Agreement or the other Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and which remain outstanding as of the Restatement Effective Date, (yii) the Loans and other obligations under the Original Credit Agreement and the Security Documents are in all respects continuing (as amended and restated hereby and which are in all respects hereinafter subject to the satisfaction terms herein) and (iii) the liens and security interests as granted under the applicable Loan Documents securing payment of the conditions set forth such Loans and other obligations are in Section 4.02all respects continuing (without interruption) and in full force and effect and are reaffirmed hereby.
(hb) The Administrative Agent On and after the Lead Arranger Restatement Effective Date, (i) all references to the Original Credit Agreement or the Credit Agreement in the Loan Documents (other than this Agreement) shall have receivedbe deemed to refer to the Original Credit Agreement, at least five Business Days prior as amended and restated hereby, (ii) all references to any section (or subsection) of the Original Credit Agreement or the Credit Agreement in any Loan Document (but not herein) shall be amended to become, mutatis mutandis, references to the corresponding provisions of this Agreement and (iii) except as the context otherwise provides, on or after the Restatement Effective Date, all documentation references to this Agreement herein (including for purposes of indemnification and reimbursement of fees) shall be deemed to be reference to the Original Credit Agreement as amended and restated hereby.
(c) This amendment and restatement is limited as written and is not a consent to any other information about amendment, restatement or waiver or other modification, whether or not similar and, except as expressly provided herein or in any other Loan Document, all terms and conditions of the Loan Parties as Document remain in full force and effect unless otherwise specifically amended hereby or by any other Loan Document.
(d) Except to the extent specifically amended on the Restatement Effective Date, this amendment and restatement shall have been reasonably requested not alter, modify or in writing at least 10 Business Days any way amend the schedules and exhibits to the Original Credit Agreement (and such schedules and exhibits shall continue to be schedules and exhibits hereto).
(e) For the avoidance of doubt, any Default or Event of Default that occurred under the Original Credit Agreement prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of continuing on the Restatement Effective DateDate shall constitute a Default or Event of Default, and such notice shall be conclusive and bindingas applicable, under this Agreement.
Appears in 1 contract
Sources: Revolving Loan Facility Credit Agreement (Central European Media Enterprises LTD)
Restatement Effective Date. The Without affecting the rights of the Borrower or any Subsidiary hereunder at all times prior to the Restatement Effective Date, the amendment and restatement of the Original Agreement in the form hereof and the obligations of the Lenders to make Loans and acquire participations in Letters of Credit and Swingline Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counselconditions set forth in Sections 3(b) and 4 of the Third Amendment shall have received from each other party thereto either (i) a counterpart of the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreementbeen satisfied.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) party hereto a counterpart of a Reaffirmation this Agreement signed on behalf of such party party.
(c) The Agents shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (iiincluding fees, charges and disbursements of counsel) written required to be reimbursed or paid by any Loan Party hereunder (including under the Original Agreement) or under any other Senior Loan Document.
(d) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Restatement Effective Date and signed by an executive officer or Financial Officer of the Borrower, together with all attachments contemplated thereby, including the results of a Lien search in scope satisfactory to the Collateral Agents made with respect to the Loan Parties 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; provided, however, that in the case of Loan Parties in respect of which may include facsimile Lien searches were performed in connection with the closing of the Original Agreement, such Lien searches shall be limited to updates of the Lien searches previously performed. Each Subsidiary owning any Senior Collateral shall be party to the Intercompany Inventory Purchase Agreement, which shall be in full force and effect.
(e) All requisite Governmental Authorities shall have approved or consented to the Transactions and there shall be no governmental or judicial action, actual or threatened, that has or could have a reasonable likelihood of restraining, preventing or imposing burdensome conditions that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(f) There shall be no material litigation against or involving the Borrower or any Subsidiary or any of its property or defaults or breaches under any provision of any security issued by the Borrower or any Subsidiary or of any agreement, undertaking, contract, indenture, deed of trust or other electronic transmission instrument, document or agreement to which the Borrower or any Subsidiary is a party or by which it or any of its properties or assets are or may be bound, which could reasonably be expected, individually or in the aggregate, to result in a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation AgreementMaterial Adverse Effect.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to Borrowing Base Certificate, dated the Restatement Effective Date and (y) as to the satisfaction executed by a Financial Officer of the conditions set forth Borrower, containing information as of a date not more than eight Business Days (or, in Section 4.02the case of information with respect to Eligible Inventory stored at a distribution center, 30 days) before the Restatement Effective Date. The Borrowing Base Amount shall be sufficient to support the Borrowings to be effected on the Restatement Effective Date.
(h) The Administrative Agent Each of the Second Priority Subsidiary Security Agreement, the Second Priority Subsidiary Guarantee and the Lead Arranger Second Priority Indemnity, Subrogation and Contribution Agreement shall have received, at least five Business Days prior be in form and substance satisfactory to the Restatement Effective DateAgents, all documentation and other information about the Loan Parties as shall have been reasonably requested duly executed by each Subsidiary party thereto and by or on behalf of the Second Priority Indebtedness Parties, and shall be in writing at least 10 Business Days prior full force and effect, and copies of such documents shall have been delivered to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActAgents.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing Each of the Initial Term Loanswaivers obtained pursuant to the Original Agreement from the lessor of each leased distribution center of the Subsidiary Loan Parties of any statutory, common law or contractual landlord's lien with respect to any inventory of any Subsidiary Loan Party (other than with respect to inventory located at leased warehouses having a value in the aggregate not to exceed $40,000,000) shall be in full force and effect. The Administrative Agent It is understood and agreed that no term of the amendment and restatement contemplated hereby shall notify Holdingsbe effective until the Restatement Effective Date occurs, and that the Borrower Original Agreement and the Lenders of Predecessor Collateral Documents shall continue in full force and effect without regard to the amendment and restatement contemplated hereby until the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Restatement Effective Date. The obligations (a) This Agreement shall become effective on the date (the “Restatement Effective Date”) on which (i) Holdings, Trico Subsea Holding, the Borrowers, the Administrative Agent and each of the Lenders party hereto shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to make Loans hereunder on the Administrative Agent or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or facsimile notice (actually received) at such office that the same has been signed and mailed to it and (ii) the conditions set forth in Section 5 are met (or waived) to the reasonable satisfaction of the Administrative Agent and the Lenders. Unless the Administrative Agent has received actual notice from any Lender that the conditions contained in Section 5 have not been met (or waived) to such Lender’s reasonable satisfaction, upon the satisfaction of the condition described in clause (i) of the immediately preceding sentence and upon the Administrative Agent’s good faith determination that the conditions described in clause (ii) of the immediately preceding sentence have been met, then the Restatement Effective Date shall not become effective until have been deemed to have occurred and all conditions contained in Section 5 shall be deemed satisfied or waived by the date on which Administrative Agent and each Lender. The Administrative Agent will give the Borrower and each Lender prompt written notice of the occurrence of the Restatement Effective Date. It is hereby acknowledged and agreed from and after the Restatement Effective Date, all references in the Credit Agreement and each of the following conditions other Loan Documents to the Original Shipping Credit Agreement and/or the Original Subsea Credit Agreement shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart of deemed to be references to the Original Shipping Credit Agreement and/or the Original Subsea Credit Agreement, as applicable, as modified hereby on the Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement AgreementEffective Date.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings the Borrowers hereby ratifies and the Borrower hereby requests such counsels reaffirms all of its payment and performance obligations, contingent or otherwise, with respect to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents Existing Loans to which it is a party, (iii) resolutions . This Agreement represents an amendment and restatement of the board of directors and/or similar governing bodies of each Loan Party approving Original Credit Agreements, and authorizing the execution, delivery and performance not a novation of the Loan Documents to which it is a party, certified as obligations and liabilities under the Original Credit Agreements or evidence of payment or discharge of all or any of the Restatement Effective Date by its secretaryobligations or liabilities under the Original Credit Agreements. The execution of this Agreement shall not operate as a novation, an assistant secretary waiver of any right, power, or remedy nor constitute a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority waiver of each Loan Party’s jurisdiction any provision of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account any of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying Original Credit Agreements, except as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions expressly set forth in Section 4.02herein.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The obligations Notwithstanding the execution and delivery of the Lenders to make Loans hereunder this Agreement on the Restatement Effective Date date hereof, this Agreement shall not become effective until effective, the date on which Existing Credit Agreement shall not be superseded as provided in Section 1.06, no commitment to make Credit Extensions shall arise and no Lender shall be required to make the initial Credit Extension hereunder each of the following conditions shall be has been satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from (i) each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) each initial Subsidiary Guarantor either (A) a counterpart of the Restatement AgreementSubsidiary Guaranty signed on behalf of such Subsidiary Guarantor or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of the Subsidiary Guaranty) that such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty.
(b) The Administrative Agent shall have received a written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead ArrangerLoan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent Lenders shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, satisfactory financial statement projections through and including or attaching the documents referred to Borrower’s 2016 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in paragraph (d) of this Sectionpreparing such projections).
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers initial Loan Parties, the authorization of each the Transactions and any other legal matters relating to such Loan Party executing Parties, the Loan Documents to which it is a partyor the Transactions, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving all in form and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit G and (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreementii) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from to the chief financial officer or chief operating officer extent requested by any of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective DateLenders, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(ie) The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Initial Term LoansBorrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(f) The Administrative Agent shall have received evidence reasonably satisfactory to it that all governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the Transactions and the continuing operations of the Borrower and its Subsidiaries have been obtained and are in full force and effect.
(g) The Administrative Agent shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (other than contingent indemnity obligations).
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission or other electronic transmission an emailed pdf of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement. The Administrative Agent shall also have received (A) from each party thereto a counterpart of a Fourth Amended and Restated Guarantee Agreement among the Restatement Administrative Agent and the Loan Parties (other than Foreign Borrowers and the Company) (as it may be restated, supplemented, amended or modified from time to time, the “Subsidiary Guarantee”) in a form satisfactory to the Administrative Agent, signed on behalf of each such party; (B) from each party thereto a counterpart of a Fourth Amended and Restated Subordination Agreement among the Loan Parties (other than any Foreign Borrower) and any of their respective Subsidiaries (including such Subsidiary that is a Foreign Borrower) that is party to any subordination agreement in connection with the Prudential Shelf Agreement and the Administrative Agent (as it may be restated, supplemented, amended or modified from time to time, the “Subordination Agreement.”) in a form satisfactory to the Administrative Agent, signed on behalf of each such party; (C) from each party thereto a counterpart of a Fourth Amended and Restated Pledge and Security Agreement among Loan Parties and the Administrative Agent (as it may be restated, supplemented, amended or modified from time to time, the “Pledge Agreement”) in a form satisfactory to the Administrative Agent, signed on behalf of each such party; and (D) from each party thereto a counterpart of a Fourth Amended and Restated Guarantee Agreement between the Company and the Administrative Agent (as it may be restated, supplemented, amended or modified from time to time, the “Company Guarantee”; together with the Subsidiary Guarantee, the “Guarantee Agreement”). 57
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent Agent, the Collateral Agent, and the Lenders and dated the Restatement Effective Date) of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, substantially in the form of Exhibit B-1, (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Weissinternal counsel for the Loan Parties, Rifkindsubstantially in the form of Exhibit B-2, and (iii) Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York special counsel for the Loan Parties, and to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPCanada substantially in the form of Exhibit B-3, special counsel for covering such matters relating to the Loan Parties, as to such matters this Agreement, the other Loan Documents or the Transactions as the Administrative Agent may Required Lenders shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsrequest.
(c) The Administrative Agent shall have heretofore received (i) a certification from the Secretary or Assistant Secretary of the Company as to true and correct copies of the certificate of incorporation, including all amendments thereto, and by-laws of each Loan Party or other Subsidiary party to the Subordination Agreement that is a corporation, the certificate of limited partnership and the limited partnership agreement of each Loan Party or other Subsidiary party to the Subordination Agreement that is a limited partnership, and the certificate of formation and operating agreement of each Loan Party or other Subsidiary party to the Subordination Agreement that is a limited liability company; (ii) to the extent relevant in the applicable jurisdiction, a certificate as to the good standing of each Loan Party or other Subsidiary party to the Subordination Agreement as of a recent date, from the Secretary of State (or similar official) of the state or other jurisdiction of its organization; (iii) a certificate of the Secretary or Assistant Secretary of ▇▇▇▇▇▇▇ and each Loan PartyGuarantor and other Subsidiary party to the Subordination Agreement, or of the managing general partner of each such Person that is a limited partnership or limited liability company, as the case may be, dated the Restatement Effective DateDate and certifying (A) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of ▇▇▇▇▇▇▇ or such Guarantor or other Subsidiary (or, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as case of a recent date Guarantor or other Subsidiary that is (x) a limited partnership, by the applicable Governmental AuthorityBoard of Directors of its managing general partner or (y) a limited liability company, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a partyby its managing member), (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is and (in the case of a partyBorrower) the borrowings hereunder, certified and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendmentDate, and (B) 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 ▇▇▇▇▇▇▇ or such Guarantor or other Subsidiary (or the managing general partner of such Person which is a limited partnership or the managing member of such Person that is a limited liability company); (iv) a good standing certificate (of another officer as to the extent incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (v) such concept existsother documents, such as solvency certificates and insurance certificates, as the Lenders or their counsel or counsel for the Administrative Agent and the Collateral Agent may reasonably request.
(d) from Each Lender requesting the applicable Governmental Authority same shall have received a duly executed Revolving Credit Note (or an amendment and restatement thereof) (each, a “Revolving Credit Note”, which term shall also include all amendments and replacements thereof or substitutions therefor), in the form of each Loan Party’s jurisdiction of incorporation, organization or formationExhibit 4.01-5 hereto.
(e) The Concurrently with the consummation of the transactions contemplated hereby on the Restatement Effective Date:
(i) the Administrative Agent shall have received upfront fees from a certificate of ▇▇▇▇▇▇▇ attaching and certifying as true and correct duly executed copies of (A) the Borrower for Prudential Fourth Amended and Restated Note Purchase and Private Shelf Agreement dated as of even date herewith among Prudential, certain other purchasers of Prudential Notes and ▇▇▇▇▇▇▇ (the account “Prudential Shelf Agreement”) in substantially the form of Exhibit D-1, (B) the Second Amended and Restated Parent Guarantee by the Company dated as even date herewith of the Lenders providing Initial Term Loans Prudential Shelf Agreement (the “Prudential Company Guaranty”) in substantially the amounts previously agreed between form of Exhibit D-2, (C) the Borrower Second Amended and Restated Subsidiary Guarantee dated as of even date herewith by the Company’s Subsidiaries of the Prudential Shelf Agreement (the “Prudential Subsidiary Guaranty”) in substantially the form of Exhibit D-3, (D) the Second Amended and Restated Pledge and Security Agreement dated as of even date herewith by the Company and certain of the Loan Parties 58 securing the Prudential Shelf Agreement (the “Prudential Pledge and Security Agreement”) in substantially the form of Exhibit D-4, and (E) the Second Amended and Restated Subordination Agreement dated as of even date herewith in favor of Prudential by the Loan Parties and certain of their respective Subsidiaries (the “Prudential Subordination Agreement”) in substantially the form of Exhibit D-5; and
(ii) the Administrative Agent shall have received from each party thereto a duly executed counterpart of a Third Amended and Restated Intercreditor Agreement among Prudential, the Notes Collateral Agent, the Administrative Agent and the Collateral Agent (the “Prudential Intercreditor Agreement”) in a form satisfactory to the Administrative Agent.
(f) The After giving effect to the Transactions, on the Restatement Effective Date, the Loan Parties shall have no Indebtedness other than (i) Indebtedness under the Loan Documents and (ii) Indebtedness permitted under Section 6.04.
(g) On the Restatement Effective Date, the Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart certificate of the chief legal officer of the Company containing a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence description, satisfactory to the Administrative Agent (which may include facsimile or in its reasonable discretion, of the capital structure of ownership and voting relationships among the Company, ▇▇▇▇▇▇▇, and each other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation AgreementLoan Party.
(gh) On the Restatement Effective Date, immediately prior to the effectiveness hereof, there shall be no Default or Event of Default (as such terms are used in the Existing Credit Agreement) under the Existing Credit Agreement, and the respective chief executive officers of the Company and of ▇▇▇▇▇▇▇ shall have delivered to the Administrative Agent certificates to such effect.
(i) All legal matters incident to this Agreement and the Borrowing hereunder shall be reasonably satisfactory to the Administrative Agent, the Collateral Agent and their respective counsel on the Restatement Effective Date.
(j) The Administrative Agent shall have received a certificate from certificate, dated the chief financial officer Restatement Effective Date and signed by the President, a Vice President or chief operating officer a Financial Officer of ▇▇▇▇▇▇▇, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(k) The Lenders shall be satisfied that the consummation of the Borrower Transactions will not (xi) violate any applicable law, statute, rule or regulation or (ii) conflict with, or result in the form a default or event of Exhibit Q certifying as to the solvency default under any material agreement of the Borrower any Loan Party or Subsidiary thereof.
(l) The Administrative Agent shall have received all fees and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated other amounts due and payable on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction extent invoiced, reimbursement or payment of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior all expenses required to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date be reimbursed or paid by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term LoansBorrowers hereunder. The Administrative Agent shall notify Holdings, the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on April 27, 2016 (and, in the event such conditions are not so satisfied or waived, the Revolving Credit Commitments shall terminate at such time).
Appears in 1 contract
Restatement Effective Date. The obligations Notwithstanding the execution and delivery of the Lenders to make Loans hereunder this Agreement on the Restatement Effective Date date hereof, this Agreement shall not become effective until effective, the date on which Existing Credit Agreement shall not be superseded as provided in Section 1.06, no commitment to make Credit Extensions shall arise and no Lender shall be required to make the initial Credit Extension hereunder each of the following conditions shall be has been satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from (i) each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) each initial Subsidiary Guarantor either (A) a counterpart of the Restatement AgreementSubsidiary Guaranty signed on behalf of such Subsidiary Guarantor or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of the Subsidiary Guaranty) that such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty.
(b) The Administrative Agent shall have received a written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead ArrangerLoan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent Lenders shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, satisfactory financial statement projections through and including or attaching the documents referred to Borrower’s 2019 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in paragraph (d) of this Sectionpreparing such projections).
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers initial Loan Parties, the authorization of each the Transactions and any other legal matters relating to such Loan Party executing Parties, the Loan Documents to which it is a partyor the Transactions, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving all in form and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit G and (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreementii) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from to the chief financial officer or chief operating officer extent requested by any of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective DateLenders, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(ie) The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Initial Term LoansBorrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(f) The Administrative Agent shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (other than contingent indemnity obligations).
(g) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from Lenders constituting the Required Lenders (under and as defined in the Original Credit Agreement), the Administrative Agent, the Borrowers, each other party thereto Term A Lender, each Revolving Facility Lender and each Issuing Bank either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent in connection with the transactions contemplated by the Restatement to ensure the continued validity, enforceability and priority of the Lenders Loan Documents after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and dated other documents as the Administrative Agent may have reasonably requested in connection therewith.
(c) All accrued interest and fees payable hereunder through the Restatement Effective Date shall have been paid.
(d) The Administrative Agent shall have received from the Company an upfront fee payable for the account of each Lender party to this Agreement on the Restatement Effective Date equal to (i) 0.125% of the aggregate principal amount of such Lender’s Term A Loan Commitment and Revolving Facility Commitment on the Restatement Effective Date up to the aggregate principal amount of “Term A Loans” and “Revolving Facility Commitments” if any, held by such Lender immediately prior to the Restatement Effective Date and (ii) 0.25% of the aggregate principal amount of such Lender’s Term A Loan Commitment and Revolving Facility Commitment on the Restatement Effective Date in excess of the amount described in subclause (i) above.
(e) The Administrative Agent shall have received (or be reasonably satisfied that it will receive promptly after the funding of Loans on the Restatement Effective Date), on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of (i) of ▇P▇▇▇, Weiss, Rifkind, ▇W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as (ii) Taylors in association with Walkers, Bermuda counsel for the Loan Parties, (iii) M▇▇▇▇ ▇▇▇▇▇ JSM, M▇▇▇▇▇▇▇ Islands counsel for the Loan Parties, (iv) G▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Bahamas counsel for the Loan Parties, and (v) C▇▇▇▇ & Co, maritime counsel for the Loan Parties, in each case (A) dated the Restatement Effective Date, (B) addressed to such matters as each Issuing Bank, the Administrative Agent, the Collateral Agent may reasonably request and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead Arranger. Each of Holdings and Loan Documents as the Borrower hereby requests such counsels to deliver such opinionsAdministrative Agent shall reasonably request.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, Party dated the Restatement Effective DateDate and certifying:
(i) a copy of the certificate or articles of incorporation, substantially in the form certificate of Exhibit G with appropriate insertionslimited partnership, executed by any Responsible Officer certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, and including or attaching the documents referred to (1) if available from an official in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedsuch jurisdiction, to the extent applicable, certified as of a recent date by the applicable Governmental AuthoritySecretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) signature and incumbency certificates a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of the Responsible Officers such jurisdiction) of each such Loan Party executing the Loan Documents to which it is as of a party, recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors and/or similar (or equivalent governing bodies body) of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified dated as of the Restatement Effective Date by its secretaryto which such person is a party and, an assistant secretary in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or a Responsible Officer as being amended and are in full force and effect without modification or amendment, and on the Restatement Effective Date,
(ivv) a good standing certificate (as to the extent such concept exists) from the applicable Governmental Authority incumbency and specimen signature of each officer executing any Loan Party’s jurisdiction of incorporation, organization Document or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans any other document delivered in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed connection herewith on behalf of such party or Loan Party, and
(iivi) written evidence satisfactory as to the Administrative Agent (which may include facsimile absence of any pending proceeding for the dissolution or other electronic transmission liquidation of a signed counterpart such Loan Party or, to the knowledge of a Reaffirmation Agreement) that such party has signed a counterpart person, threatening the existence of a Reaffirmation Agreement.such Loan Party;
(g) The Administrative Agent Lenders shall have received a solvency certificate from the chief financial officer or chief operating officer of the Borrower (x) substantially in the form of Exhibit Q certifying as to the solvency C and signed by a Financial Officer of the Borrower and its Subsidiaries on a consolidated basis after giving effect Company.
(h) JPMorgan Chase Bank, N.A. shall have received all fees payable thereto or to the Transactions to be consummated any Lender on or prior to the Restatement Effective Date and (y) as and, to the satisfaction extent invoiced at least three Business Days prior to the Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, A▇▇▇▇▇▇ (Bermuda) Limited, H▇▇▇▇ & J▇▇▇▇▇▇ and W▇▇▇▇▇, ▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the conditions set forth in Section 4.02Loan Parties hereunder or under any Loan Document.
(hi) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five three Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The PATRIOT Act that has been requested by the Administrative Agent shall have received in writing at least ten Business Days prior to the Restatement Effective Date and (ii) to the extent a Borrowing Request requesting Borrower qualifies as a “legal entity customer” under the borrowing of the Initial Term Loans. The Administrative Agent shall notify HoldingsBeneficial Ownership Regulation, the Borrower and the Lenders of at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to each Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied). For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Restatement Effective Date specifying its objection thereto and such notice Lender shall be conclusive and bindingnot have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Restatement Effective Date. The effectiveness of this Agreement and the obligations of the Lenders to make Loans hereunder and of the Issuing Bank to issue Letters of Credit requested to be made by it on the Restatement Effective Date shall not become effective until is subject to the date on which each of the following conditions shall be satisfied satisfaction (or waived waiver in accordance with Section 9.02):10.02) of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart of this Agreement, executed and delivered by the Restatement Agreement signed Administrative Agent, Holdings and the Parent Borrower, Required Lenders (as defined in the Existing Credit Agreement), each Revolving Lender set forth on behalf of such party or Schedule 2.01 and each Tranche A Term Lender set forth on Schedule 2.01, (ii) written evidence satisfactory Addenda to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement, executed and delivered by Persons with Tranche B Term Commitments and (ii) that such party has signed a counterpart Reaffirmation substantially in the form of Exhibit L hereto, executed and delivered by Holdings, the Restatement AgreementParent Borrower and each Subsidiary Loan Party.
(b) All Loans (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement shall have been replaced with Loans hereunder (and all accrued interest thereon, and all amounts due pursuant to Section 2.11(a) of the Existing Credit Agreement, as of the Restatement Effective Date shall have been paid).
(c) The Senior Secured Notes Repayment shall have occurred (or shall occur substantially simultaneously with the occurrence of the Restatement Effective Date).
(d) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Weiss(ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, Rifkind, (iii) ▇▇▇▇▇ Day and (iv) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in each case in form and substance reasonably satisfactory to the Administrative Agent and the Lead ArrangerAgent. Each of Holdings and the Parent Borrower hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.. 509265-1724-13879091
(e) The Administrative Agent shall have received upfront fees from such documents and certificates as the Borrower for Administrative Agent or its counsel may reasonably request relating to the account organization, existence and good standing of each Loan Party, the authorization of the Lenders providing Initial Term Loans Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in the amounts previously agreed between the Borrower form and substance satisfactory to the Administrative AgentAgent and its counsel.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of Holdings and the Parent Borrower, confirming compliance with the conditions set forth in paragraphs (ia) a counterpart and (b) of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation AgreementSection 4.02.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower all fees and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated other amounts due and payable on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction extent invoiced, reimbursement or payment of the conditions set forth in Section 4.02all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any Loan Document.
(h) The Administrative Agent Collateral and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as Guarantee Requirement shall have been reasonably requested in writing at least 10 Business Days prior to satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Restatement Effective Date and signed by an executive officer or Financial Officer of the Parent 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 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 or will be released pursuant to UCC-3 financing statements or other release documentation delivered to the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActCollateral Agent.
(i) The Administrative Agent shall have received a Borrowing Request requesting evidence that the borrowing insurance required by Section 5.07 and the Security Documents is in effect, together with endorsements naming the Collateral Agent, for the benefit of the Initial Term Loans. Secured Parties, as additional insured and loss payee thereunder, to the extent required by Section 5.07.
(j) The Transactions shall have been consummated or shall be consummated substantially simultaneously with the initial funding of the Loans on the Restatement Effective Date in accordance with applicable law and all other related documentation in all material respects (without giving effect to any amendments not approved by the Administrative Agent), and after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Parent Borrower or any of the Subsidiaries shall have outstanding any shares of preferred stock or any Indebtedness to a Person other than the Parent Borrower or any Subsidiary, other than (i) Indebtedness incurred under the Loan Documents and (ii) Indebtedness incurred and outstanding as of the date hereof in compliance with Section 6.01 of this Agreement.
(k) The Lenders shall have received the financial statements referred to in Section 3.04(a).
(l) The Administrative Agent shall notify Holdingshave received a certificate, in form and substance reasonably satisfactory to the Borrower Administrative Agent, dated the Restatement Effective Date and signed by the chief financial officer of each of Holdings and the Parent Borrower, certifying that 509265-1724-13879091 Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent.
(m) The Administrative Agent and the Lenders of 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 Restatement Effective Date, and such notice shall be conclusive and bindingUSA PATRIOT Act.
Appears in 1 contract
Sources: Credit Agreement (Trimas Corp)
Restatement Effective Date. The obligations amendment and restatement of this Agreement in the Lenders to make Loans hereunder on the Restatement Effective Date form hereof shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.0210.02):
(a) The Administrative Agent (or its counsel) shall have received received, with a counterpart or copy for each Lender, from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of each such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that each such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the Lenders authorization of the Transactions and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for any other legal matters relating to the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesDocuments or the Transactions, as to such matters as the Administrative Agent may reasonably request and all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsits counsel.
(c) The Administrative Agent shall have received received, with a certificate of counterpart or copy for each Loan PartyLender, a certificate, dated the Restatement Effective Date, substantially of a responsible officer of the Company confirming as of the Restatement Effective Date (i) the accuracy of all representations and warranties in the form of Exhibit G with appropriate insertionsLoan Documents and (ii) that there exists no Default, executed by any Responsible Officer of in each such Loan Party, case after giving effect to the Transactions that are to occur on the Restatement Effective Date and including or attaching to the documents referred to in paragraph (d) of this SectionBlue Falcon Acquisition.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedall fees and other amounts due and payable on or prior to the Restatement Effective Date in connection with the transactions contemplated hereby, including, to the extent applicableinvoiced, as reimbursement or payment of a recent date all out-of-pocket expenses agreed to be reimbursed or paid by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each any Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent All Loans outstanding under the Existing Credit Agreement on the Restatement Effective Date shall have received upfront been prepaid (subject to reborrowing on the terms set forth herein) and all interest and fees from accrued to the Borrower for Restatement Effective Date under the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative AgentExisting Credit Agreement shall have been paid.
(f) The Guarantee Requirement shall be satisfied after giving effect to the Blue Falcon Acquisition, and each subsidiary that is a Subsidiary Guarantor immediately prior to the Restatement Effective Date shall have executed and delivered to the Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence an instrument reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation reaffirming its obligations under the Subsidiary Guarantee Agreement.
(g) The Administrative Agent shall have received a certificate from favorable written opinion (addressed to the chief financial officer or chief operating officer Administrative Agent, the Issuing Banks and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., General Counsel of the Borrower (x) Company, substantially in the form of Exhibit Q certifying ▇-▇, (▇▇) ▇▇▇▇▇▇▇▇▇ ▇▇, Swiss counsel for the Loan Parties, substantially in the form of Exhibit G-2, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Canadian counsel for the Loan Parties, substantially in the form of Exhibit G-3, and (iv) such special and local counsel as may be required by the Administrative Agent, in each case covering such matters relating to the solvency of Loan Parties, the Borrower and its Subsidiaries on a consolidated basis after giving effect to Loan Documents or the Transactions to be consummated on or prior to as the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02Administrative Agent shall reasonably request.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, received all documentation and other information about the related to each Loan Parties as shall have been Party reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date required by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities and each Lender under applicable “know your customer” and anti-money laundering or similar rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(i) The Blue Falcon Acquisition shall have been consummated or shall be consummated substantially concurrently with the effectiveness of this Agreement in all material respects in accordance with the terms set forth in the Stock Purchase Agreement without giving effect to amendments, waivers, consents by the Company or its affiliates or other modifications that are materially adverse to the Administrative Agent shall have received a Borrowing Request requesting or the borrowing Lenders without the consent of the Initial Term Loans. The Administrative Agent shall notify Holdings(such consent not to be unreasonably withheld, delayed or conditioned, the Borrower Administrative Agent hereby agreeing to respond promptly to any request for such a consent) it being agreed that (i) any increase or decrease in the “Initial Purchase Price” set forth in the Stock Purchase Agreement in excess of 10% in the aggregate shall be deemed to be materially adverse to the Administrative Agent and the Lenders and (ii) any such increase or decrease of 10% or less in the aggregate shall be deemed not to be materially adverse to the Administrative Agent or the Lenders). Notwithstanding any other provision of this Agreement, if the Restatement Effective Date shall not have occurred by the Termination Date, this Agreement shall cease to be of any force or effect and such notice shall be conclusive and bindingthe Existing Credit Agreement will continue in effect in its existing form.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Albany International Corp /De/)
Restatement Effective Date. The obligations amendment and restatement of this Agreement in the Lenders to make Loans hereunder on the Restatement Effective Date form hereof shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.0210.02):
(a) The Administrative Agent (or its counsel) shall have received received, with a counterpart or copy for each Lender, from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of each such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that each such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed to such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the Lenders authorization of the Transactions and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for any other legal matters relating to the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesDocuments or the Transactions, as to such matters as the Administrative Agent may reasonably request and all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsits counsel.
(c) The Administrative Agent shall have received received, with a certificate of counterpart or copy for each Loan PartyLender, a certificate, dated the Restatement Effective Date, substantially of a responsible officer of the Company confirming as of the Restatement Effective Date (i) the accuracy of all representations and warranties in the form of Exhibit G with appropriate insertionsLoan Documents and (ii) that there exists no Default, executed by any Responsible Officer of in each such Loan Party, and including or attaching case after giving effect to the documents referred Transactions that are to in paragraph (d) of this Sectionoccur on the Restatement Effective Date.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedall fees and other amounts due and payable on or prior to the Restatement Effective Date in connection with the transactions contemplated hereby, including, to the extent applicableinvoiced, as reimbursement or payment of a recent date all out-of-pocket expenses agreed to be reimbursed or paid by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each any Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent All Loans outstanding under the Existing Credit Agreement on the Restatement Effective Date shall have received upfront been prepaid (subject to reborrowing on the terms set forth herein) and all interest and fees from accrued to the Borrower for Restatement Effective Date under the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative AgentExisting Credit Agreement shall have been paid.
(f) The Guarantee Requirement shall be satisfied, and the Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence an instrument in form reasonably satisfactory to it and executed by each of the Administrative Agent (Subsidiary Guarantors, pursuant to which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation each Subsidiary Guarantor reaffirms its obligations under the Subsidiary Guarantee Agreement.
(g) The Administrative Agent shall have received a certificate from favorable written opinion (addressed to the chief financial officer or chief operating officer Administrative Agent, the Issuing Banks and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., General Counsel of the Borrower (x) Company, substantially in the form of Exhibit Q certifying ▇-▇, (▇▇) ▇▇▇▇▇▇▇▇▇ ▇▇, Swiss counsel for the Loan Parties, substantially in the form of Exhibit G-2, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Canadian counsel for the Loan Parties, substantially in the form of Exhibit G-3, and (iv) such special and local counsel as may be required by the Administrative Agent, in each case covering such matters relating to the solvency of Loan Parties, the Borrower and its Subsidiaries on a consolidated basis after giving effect to Loan Documents or the Transactions to be consummated on or prior to as the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02Administrative Agent shall reasonably request.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, received all documentation and other information about the related to each Loan Parties as shall have been Party reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date required by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities and each Lender under applicable “know your customer” and anti-money laundering or similar rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing . Notwithstanding any other provision of the Initial Term Loans. The Administrative Agent shall notify Holdingsthis Agreement, the Borrower and the Lenders of if the Restatement Effective Date shall not have occurred by the Termination Date, this Agreement shall cease to be of any force or effect and such notice shall be conclusive and bindingthe Existing Credit Agreement will continue in effect in its existing form.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Albany International Corp /De/)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.029.2):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received a Note executed by the Borrower in favor of each Lender requesting a Note in advance of the Restatement Effective Date.
(c) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇Skadden, WeissArps, RifkindSlate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and Borrower in form and substance reasonably satisfactory to the Administrative Agent and the Lead ArrangerAgent. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Sectionopinion.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates certified copies of the Responsible Officers resolutions of each Loan Party executing the board of directors of the Borrower and the sole member of the Guarantor approving the transactions contemplated by the Loan Documents to which it is a party, (iii) resolutions party and the execution and delivery of the board of directors and/or similar governing bodies of each such Loan Documents to be delivered by such Loan Party approving on the Restatement Effective Date, and authorizing the executionall documents evidencing other necessary corporate or limited liability company action and governmental approvals, delivery and performance of if any, with respect to the Loan Documents and (ii) all other documents reasonably requested by the Administrative Agent relating to which it is a partythe organization, certified as existence and good standing of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force Guarantor and effect without modification or amendment, the Borrower and (iv) a good standing certificate (to authorization of the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationtransactions contemplated hereby.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account a certificate of the Lenders providing Initial Term Loans in the amounts previously agreed between Secretary or an Assistant Secretary of the Borrower and the Administrative AgentGuarantor (or its sole member, as applicable) and the Borrower certifying the names and true signatures of the officers of such entity (or its sole member, as applicable) authorized to sign the Loan Documents to which it is a party, to be delivered by such entity on the Restatement Effective Date and the other documents to be delivered hereunder on the Restatement Effective Date.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement certificate, dated the Restatement Effective Date and signed on behalf of such party the Borrower by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (iia) written evidence satisfactory to and (b) of Section 4.2 as of the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation AgreementRestatement Effective Date.
(g) The Lenders, the Administrative Agent and the Arrangers shall have received a certificate from the chief financial officer or chief operating officer of all fees required to be paid by the Borrower (x) in on the form of Exhibit Q certifying as Restatement Effective Date, and all expenses required to the solvency of be reimbursed by the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or for which invoices have been presented at least three business days prior to the Restatement Effective Date and (y) as to Date, on or before the satisfaction of the conditions set forth in Section 4.02Restatement Effective Date.
(h) The Administrative Agent and the Lead Arranger shall have received, to the extent reasonably requested by any of the Lenders at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent Guarantor shall have received a Borrowing Request requesting duly authorized, executed and delivered the borrowing of Reaffirmation Agreement.
(j) On the Initial Term LoansRestatement Effective Date, all then outstanding loans under the Existing Credit Agreement shall have been repaid in full, together with all accrued and unpaid interest and fees (including Commitment Fees (under and as defined in the Existing Credit Agreement)) and other amounts owing thereunder, whether or not such interest, fees or other amounts are actually due and payable at such time pursuant to the Existing Credit Agreement. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Without limiting the generality of the provisions of Article VIII, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Restatement Effective Date. The obligations This Agreement shall become effective as an amendment and restatement of the Lenders to make Loans hereunder on Original Credit Agreement upon the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either to this Agreement (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission of a signed counterpart of this Agreementimaging transmission) that such party has signed such a counterpart of the Restatement Agreementcounterpart.
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent such customary documents and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, in form and substance each case reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsAgent.
(c) The Administrative Agent shall have received a certificate of each Loan Partycustomary written opinions (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Restatement Effective Date) of each of (i) Sidley Austin LLP, substantially in counsel for the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan PartyCompany, and including or attaching (ii) local counsel for the documents referred to Luxembourg Borrower, in paragraph (d) of this Sectioneach case as shall be reasonably requested by the Administrative Agent.
(d) The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects, in each case on and as of the Restatement Effective Date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date.
(e) No Default shall have occurred and be continuing.
(f) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretary, an assistant secretary the chief executive officer or a Responsible Financial Officer as being of the Company, confirming compliance with the conditions set forth in full force paragraphs (d) and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreementthis Section.
(g) The Administrative Agent shall have received a certificate from reaffirmation agreement satisfactory in form and substance to it, executed by each Subsidiary Loan Party, acknowledging that the chief financial officer or chief operating officer Guarantees and Liens created by the Collateral Agreement will continue to guarantee and secure the obligations of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02Borrowers under this Agreement.
(h) The Administrative Agent and the Lead Arranger shall have receivedreceived all fees and accrued and unpaid expenses (to the extent, in the case of expenses, invoiced at least five Business Days three business days prior to the Restatement Effective Date or such shorter period as may be reasonably agreed by the Company) due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including fees, charges and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Commitment Letter or the Fee Letter.
(i) The Lenders shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting , to the borrowing of extent requested in writing no fewer than one day prior to the Initial Term LoansRestatement Effective Date. The Administrative Agent shall notify Holdings, the Borrower Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived in accordance with Section 9.02) at or prior to 5:00 p.m., New York City time, on January 15, 2015.
Appears in 1 contract
Sources: Credit Agreement (Knowles Corp)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Restatement Agreement.Loan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit D.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Stoel Rives LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPcovering such matters relating to the Borrower, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization and valid existence of each the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, the Loan PartyDocuments or the Transactions, dated all in form and substance satisfactory to the Restatement Effective Date, substantially Administrative Agent and its counsel and as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.D.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretary, an assistant secretary or a Responsible Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true and correct as being in full force and effect without modification or amendment, of such date and (ivii) a good standing certificate (to the extent that no Default or Event of Default has occurred and is continuing as of such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationdate.
(e) The Administrative Agent shall have received upfront fees from the Borrower received, for the account of the Lenders providing Initial Term Loans in applicable Persons, payment of all accrued and unpaid interest and fees owing under the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Existing Credit Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days immediately prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder This Agreement shall become effective on the Restatement Effective Date shall not become effective until the date on which each of immediately after the following conditions shall be have been satisfied (or waived in accordance with Section 9.0210.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission Electronic Transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇(i) Cravath, Weiss, Rifkind, ▇▇Swaine & ▇▇▇▇▇ & LLP, counsel for the Borrower, and (ii) ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesEsq., as to such matters as the Administrative Agent may reasonably request Corporate Vice President and Secretary, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerits counsel. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, dated the Restatement Effective Dateauthorization of the Transactions and any other legal matters relating to the Loan Parties, substantially this Agreement or the Transactions, all in form and substance reasonably satisfactory to the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, Administrative Agent and including or attaching the documents referred to in paragraph (d) of this Sectionits counsel.
(d) The Administrative Agent representations and warranties of the Borrower set forth in Article III shall be true and correct in all material respects, and no Default shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature occurred and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationbe continuing.
(e) The Administrative Agent shall have received upfront all fees from the Borrower for the account of the Lenders providing Initial Term Loans in the and other amounts previously agreed between the Borrower due and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated payable on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction extent invoiced, reimbursement of all out-of-pocket expenses required to be reimbursed by the conditions set forth in Section 4.02Borrower hereunder.
(hf) The Administrative Agent and the Lead Arranger Borrower shall have receivedprepaid (or simultaneously with the effectiveness of this Agreement shall prepay) all Loans outstanding under (and as defined in) the Existing Credit Agreement (including all accrued and unpaid interest thereon) and all accrued and unpaid fees, accrued to (but not including) the Restatement Effective Date. Each Lender party hereto that is also a “Lender” under the Existing Credit Agreement hereby waives the requirement for advance notice of prepayment of any “Loans” outstanding thereunder; provided such notice of prepayment is delivered on the Restatement Effective Date.
(g) 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, to the extent requested at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingbinding upon all parties hereto and following such notice, none of the conditions set forth in this Section 4.01 shall be of further application.
Appears in 1 contract
Restatement Effective Date. The obligations amendment and restatement of the Lenders to make Loans hereunder on the Restatement Effective Date Existing Credit Agreement by this Agreement shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):is satisfied:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic fax transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesCompany, as to such matters as substantially in the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower Exhibit B. The Company hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Company and each other Loan PartyParty party to any Loan Document, dated the Restatement Effective Date, substantially in authorization of the form of Exhibit G with appropriate insertions, executed by Transactions and any Responsible Officer of other legal matters relating to the Company and such Loan PartyParties, the Loan Documents or the Transactions, all in form and including or attaching substance satisfactory to the documents referred to in paragraph (d) of this SectionAdministrative Agent and its counsel.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretarythe President, an assistant secretary a Vice President or a Responsible Financial Officer as being of the Company, confirming compliance with the conditions set forth in full force and effect without modification or amendment, paragraphs (a) and (ivb) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationSection 4.02.
(e) The Administrative Agent shall have received upfront all fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory accrued but unpaid prior to the Administrative Agent (which may include facsimile or Restatement Effective Date and all other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower fees and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated other amounts due and payable on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall continue to be satisfied.
(g) The Reaffirmation shall have been duly executed by the conditions set forth parties thereto and delivered to the Collateral Agent and shall be in Section 4.02full force and effect.
(h) The Administrative Agent Commitments under and as defined in the Lead Arranger Existing Credit Agreement of each Non-Continuing Lender shall have receivedbeen, at least five Business Days prior to the Restatement Effective Dateor shall simultaneously be, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Actterminated.
(i) The Administrative Agent Loans under and as defined in the Existing Credit Agreement, and all other amounts outstanding under the Existing Credit Agreement, shall have received a Borrowing Request requesting the borrowing of the Initial Term been, or shall simultaneously be, paid in full (except as otherwise agreed in regard to any outstanding Special Loans). The Administrative Agent shall notify Holdings, the Borrower Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. It is understood and agreed that the Existing Credit Agreement shall continue in full force and effect in the form applicable prior to the amendment and restatement provided for herein until the Restatement Effective Date shall occur.
Appears in 1 contract
Sources: Credit Agreement (Labone Inc/)
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date This Agreement shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent Agents, the Issuing Bank and the Lenders and dated the Restatement Effective Date) of C▇▇▇▇, Weiss, Rifkind, ▇▇ ▇▇▇▇▇▇ & ▇▇R▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for substantially in the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. of Exhibit I. Each of Holdings and the Borrower Borrowers hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a true and complete copy of each Loan Party's organizational documents, an incumbency certificate for each person authorized to execute Loan Documents on behalf of a Loan Party, resolutions authorizing the due execution, delivery and performance of the Loan Documents and the Transactions and a good standing certificate from each jurisdiction where a Loan Party is organized and each jurisdiction necessary for it to carry on its business and such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, dated the Restatement authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel. The Loan Parties' delivery of the foregoing documents to the Administrative Agent on the Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred Date shall be deemed to in paragraph (d) of have satisfied this Sectioncondition.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretarythe president, an assistant secretary a vice president or a Responsible Financial Officer as being of the Company, confirming compliance with the conditions set forth in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationthis Section 4.01.
(e) The Administrative Agent shall have received upfront all fees from and other amounts due and payable on or prior to the Borrower for Restatement Effective Date, including, to the account extent invoiced, reimbursement or payment of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower all out-of-pocket expenses (including reasonable fees, charges and the Administrative Agentdisbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart completed Borrowing Base Certificate dated the Restatement Effective Date and signed by a Financial Officer of a Reaffirmation Agreement signed on behalf the Company, calculating the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base as of such party or (ii) written evidence satisfactory the end of the month ended immediately prior to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation AgreementRestatement Effective Date.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer results of satisfactory lien searches (including, without limitation, the results of satisfactory tax lien and judgment lien searches) showing the absence of any Liens (except for the Liens in favor of the Borrower (xCollateral Agent) in the form on any of Exhibit Q certifying as to the solvency any of the Borrower and its Subsidiaries Collateral other than Liens expressly permitted by Section 6.02 hereof or Liens which will be terminated on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) including, without limitation, those Liens in favor of the lenders under the Bridge Financing Facility (as defined in the Existing Credit Agreement). The Administrative Agent's receipt of the foregoing on the Effective Date shall be deemed to have satisfied this condition (other than with respect to the satisfaction termination of the conditions set forth in Section 4.02.
(h) The Administrative Agent and Liens with respect to the Lead Arranger Bridge Financing Facility, which shall have received, at least five Business Days be required to be delivered prior to the Restatement Effective Date, all documentation ).
(h) All necessary consents and other information about approvals to the Loan Parties as transactions contemplated hereby shall have been reasonably requested in writing at least 10 Business Days prior obtained and shall be satisfactory to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActAgent.
(i) The Administrative Agent, based upon delivery of a customary officer's solvency certificate together with the consolidated balance sheet of the Company, shall be satisfied that Loan Parties, on a consolidated basis, are Solvent on the Restatement Effective Date, before and after giving effect to the Credit Extensions made on the Restatement Effective Date.
(j) To the extent required to be satisfied on the Restatement Effective Date, the Real Estate Eligibility Requirements shall have been satisfied.
(k) The Administrative Agent shall have received a Borrowing Request requesting such other instruments, documents, and agreements as the borrowing of the Initial Term LoansAdministrative Agent or its counsel may reasonably request. The Administrative Agent shall notify Holdings, the Borrower Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which satisfaction of each of the following conditions shall be satisfied (on or waived in accordance with Section 9.02):prior to the Restatement Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto to the Original Credit Agreement immediately prior to the Restatement Effective Date hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic mail transmission of a signed counterpart of this Agreementin accordance with Section 9.01) that such party has signed a counterpart of the Restatement this Agreement.;
(b) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from the Company and each Loan Party initial U.S. Guarantor either (iA) a counterpart of a Reaffirmation reaffirmation under the U.S. Guarantee and Security Agreement signed on behalf of such party U.S. Loan Party or (iiB) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic mail transmission in accordance with Section 9.01 of a signed counterpart signature page of a Reaffirmation Agreementsuch reaffirmation agreement) that such party has signed a counterpart of a Reaffirmation Agreement.reaffirmation agreement;
(gc) The Administrative Agent (or its counsel) shall have received from the Bermuda Borrower (A) counterparts of a reaffirmation agreement under the Foreign Security Agreement signed on behalf of the Bermuda Borrower and the Foreign Guarantors on the Restatement Effective Date or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission in accordance with Section 9.01 of a signed signature page of such reaffirmation agreement) that the Bermuda Borrower and the Foreign Guarantors have signed a counterpart of such reaffirmation agreement;
(d) The Administrative Agent shall have received the executed legal opinions of (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company and (ii) ▇▇▇▇▇▇▇, special Bermuda counsel to the Foreign Loan Parties, in each case, dated the Restatement Effective Date and in form reasonably satisfactory to the Administrative Agent. The Company hereby requests such counsel to deliver such opinion;
(e) The Administrative Agent shall have received such customary closing documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties on the Restatement Effective Date, the authorization of the transactions contemplated hereby on the Restatement Effective Date and any other legal matters relating to such Loan Parties, the Loan Documents or such transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel;
(f) The Administrative Agent shall have received a certificate from attesting to the chief financial officer or chief operating officer Solvency of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower Company and its Subsidiaries (taken as a whole) on a consolidated basis the Restatement Effective Date after giving effect to the Transactions to be consummated Transactions, from a Financial Officer of the Company;
(g) The Lenders shall have received on or prior to the Restatement Effective Date all documentation and (y) as other information reasonably requested in writing by them at least three business days prior to the satisfaction of Restatement Effective Date in order to allow the conditions set forth in Section 4.02.Lenders to comply with the Patriot Act and other “know your customer” Laws;
(h) The Administrative Agent and the Lead Arranger Arrangers shall have received, at least five Business Days received all fees and other amounts due and payable on or prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior including, to the Restatement Effective Date extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.Borrowers hereunder;
(i) The Administrative Agent shall have received Notes executed by the applicable Borrowers in favor of each Lender requesting a Borrowing Request requesting Note at least three Business Days prior to the borrowing of the Initial Term Loans. Restatement Effective Date; and
(j) The Administrative Agent shall notify Holdings, the Borrower and the Lenders have received a certificate signed by a Responsible Officer of the Restatement Effective DateCompany certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the audited financial statements that has had or could be reasonably expected to have, and such notice shall be conclusive and bindingeither individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Dole Food Co Inc)
Restatement Effective Date. The obligations amendment and restatement of the Lenders to make Loans hereunder on Existing Credit Agreement in the Restatement Effective Date form of this Agreement shall become effective on, and shall not become effective until until, the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission of a signed counterpart of this Agreementtransmission) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent Agent, the Lenders and the Lenders Issuing Bank and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ Fenwick & ▇▇▇▇▇▇▇▇ West LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinionsAgent.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each Loan Party, dated the Restatement Effective Dateauthorization of the Transactions and any other legal matters relating to the Loan Parties, substantially the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this SectionAdministrative Agent.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretarythe chief executive officer or the chief financial officer of the Borrower, an assistant secretary or a Responsible Officer as being confirming compliance with the conditions set forth in full force the first sentence of paragraph (f) of this Section, in paragraph (i) of this Section and effect without modification or amendment, in paragraphs (a) and (ivb) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationSection 4.02.
(e) The Administrative Agent shall have received upfront all fees from and other amounts due and payable on or prior to the Borrower for Restatement Effective Date, including, to the account extent invoiced, payment or reimbursement of all fees and expenses (including fees, charges and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Lenders providing Initial Term Loans in Commitment Letter, the amounts previously agreed between the Borrower and the Administrative AgentFee Letter or any Loan Document.
(f) The Collateral and Guarantee Requirement shall have been satisfied (subject to the penultimate sentence of this Section). The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart completed Perfection Certificate, dated the Restatement Effective Date and signed by an executive officer or a Financial Officer of the Borrower, together with all attachments contemplated thereby, including the results of a Reaffirmation Agreement signed on behalf search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such party or (ii) written search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (which may include facsimile or other electronic transmission similar documents) are permitted under Section 6.02 or have been, or substantially contemporaneously with the initial funding of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation AgreementLoans on the Restatement Effective Date will be, released.
(g) The Administrative Agent shall have received evidence that the insurance required by Section 5.08 is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.08.
(h) The Lenders shall have received the financial statements, opinions and certificates referred to in Section 3.04.
(i) Immediately after giving effect to the Transactions, none of the Borrower or any Subsidiary shall have outstanding any Indebtedness or Disqualified Equity Interests or, in the case of any Subsidiary, any other shares of preferred stock or other preferred Equity Interests, other than (i) Indebtedness incurred under the Loan Documents, (ii) the Convertible Notes and (iii) other Indebtedness set forth on Schedule 6.01.
(j) The Administrative Agent shall have received a certificate from certificate, dated the Restatement Effective Date and signed by the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying Borrower, as to the solvency of the Borrower and its Subsidiaries Loan Parties on a consolidated basis after giving effect to the Transactions to be consummated occurring on or prior to the Restatement Effective Date Date, in form and (y) as substance reasonably satisfactory to the satisfaction of the conditions set forth in Section 4.02Administrative Agent.
(hk) The Administrative Agent principal of all loans, and all interest, fees and other amounts accrued or otherwise owing, under the Lead Arranger Existing Credit Agreement shall have received, at least five Business Days prior to the Restatement Effective Date, been or shall be paid in full (it being understood that any Existing Letters of Credit may remain outstanding).
(l) The Lenders shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act.
(i) The Administrative Agent . Notwithstanding the foregoing, if the Borrower shall have received a Borrowing Request requesting used commercially reasonable efforts to procure and deliver, but shall nevertheless be unable to deliver, any Mortgage, Foreign Pledge Agreement or Control Agreement, or any landlord, warehouseman, agent, bailee or processor acknowledgment or waiver, that is required to be delivered in order to satisfy the borrowing requirements of the Initial Term LoansCollateral and Guarantee Requirement, such delivery shall not be a condition precedent to the effectiveness of this Agreement on the Restatement Effective Date, but shall be required to be accomplished as provided in Section 5.13. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived in accordance with Section 9.02) at or prior to 5:00 p.m., New York City time, on June 30, 2016.
Appears in 1 contract
Sources: Credit Agreement (Shutterfly Inc)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.0210.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto hereto either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent Agents shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan PartiesParent Borrower, as to such matters as substantially in the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. of Exhibit B. Each of Holdings and the Parent Borrower hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, dated the Restatement Effective Dateauthorization of the Transactions and any other legal matters relating to the Loan Parties, substantially the Loan Documents or the Transactions, all in form and substance satisfactory to the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, Administrative Agent and including or attaching the documents referred to in paragraph (d) of this Sectionits counsel.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to dated the Restatement Effective Date and (y) as to signed by the satisfaction President, a Vice President or a Financial Officer of Holdings and the Parent Borrower, confirming compliance with the conditions set forth in Section 4.02.
(he) The Reaffirmation Agreement 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 Effective Date.
(f) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days received all fees and other amounts due and payable on or prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior including, to the Restatement Effective Date extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Administrative Agent any Loan Party hereunder or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loansany other Loan Document. The Administrative Agent shall notify Holdings, the Parent Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans, of the Tranche B-1 Lenders to make the Deposits 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 10.02) at or prior to 5:00 p.m., New York City time, on August 2, 2006 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (Trimas Corp)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies of the Restatement Agreement.Loan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit D.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Stoel Rives LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPcovering such matters relating to the Borrower, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent shall have received a certificate such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization and valid existence of each the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, the Loan PartyDocuments or the Transactions, dated all in form and substance satisfactory to the Restatement Effective Date, substantially Administrative Agent and its counsel and as further described in the form list of closing documents attached as Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.D.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedcertificate, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of dated the Restatement Effective Date and signed by its secretary, an assistant secretary or a Responsible Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true and correct as being in full force and effect without modification or amendment, of such date and (ivii) a good standing certificate (to the extent that no Default or Event of Default has occurred and is continuing as of such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationdate.
(e) The Administrative Agent shall have received upfront fees from the Borrower received, for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart applicable Persons, payment of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in all accrued and unpaid interest and fees owing under the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or Existing Credit Agreement immediately prior to the Restatement Effective Date and (y) all principal of any “Swingline Loans” outstanding under and as to defined in the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days Existing Credit Agreement immediately prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The obligations Notwithstanding the execution and delivery of the Lenders to make Loans hereunder this Agreement on the Restatement Effective Date date hereof, this Agreement shall not become effective until effective, the date on which Existing Credit Agreement shall not be superseded as provided in Section 1.06, no commitment to make credit extensions shall arise and no Lender shall be required to make the initial credit extension hereunder each of the following conditions shall be has been satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from (i) each other party thereto hereto either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement, (ii) each initial Subsidiary Guarantor either (A) a counterpart of the Restatement AgreementSubsidiary Guaranty signed on behalf of such Subsidiary Guarantor or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of the Subsidiary Guaranty) that such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty and (iii) each Loan Party either (A) a counterpart of a reaffirmation of the Collateral Documents signed on behalf of such Loan Party or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of such reaffirmation of the Collateral Documents) that such Loan Party has signed a counterpart of such reaffirmation of the Collateral Documents.
(b) The Administrative Agent shall have received a written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇L▇▇▇▇▇ & ▇▇W▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties and of Cozen O’▇▇▇▇▇▇ P.C., local counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead ArrangerLoan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinionsopinion.
(c) The Administrative Agent Lenders shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, satisfactory financial statement projections through and including or attaching the documents referred to Borrower’s 2027 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in paragraph (d) of this Sectionpreparing such projections).
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers initial Loan Parties, the authorization of each the Transactions and any other legal matters relating to such Loan Party executing Parties, the Loan Documents to which it is a partyor the Transactions, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving all in form and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence substance reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) and its counsel and as further described in the form list of closing documents attached as Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and G, (yii) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days days prior to the Restatement Effective Date, all documentation and other information about regarding the Loan Parties as shall have been reasonably Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of the Borrower at least 10 Business Days prior to the Restatement Effective Date and (iii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 Business Days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (iii) shall be deemed to be satisfied).
(ie) The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Initial Term LoansBorrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(f) The Administrative Agent shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (other than contingent indemnity obligations).
(g) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Administrative Agent, on behalf of the Secured Parties, holds a perfected Lien upon the Collateral having the priority required by the Collateral Documents and that is perfected to the extent required by the Collateral Documents, or that arrangements reasonably satisfactory to the Administrative Agent for so perfecting such Liens are in place.
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Restatement Effective Date. The Notwithstanding the execution and delivery of this Agreement on the date hereof, this Agreement shall not become effective, the Existing Credit Agreement shall not be superseded as provided in Section 1.07, and the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either hereto (iincluding the Departing Lender) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory which, subject to the Administrative Agent (which Section 9.06(b), may include facsimile any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic transmission means that reproduces an image of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreementan actual executed signature page).
(b) The Administrative Agent shall have received a written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇(i) L▇▇▇▇▇ & ▇▇W▇▇▇▇▇▇ LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special (ii) in-house counsel for the Loan PartiesBorrower, as to such matters as the Administrative Agent may reasonably request and in each case, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead ArrangerBorrower, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent Lenders shall have received a certificate (i) audited consolidated financial statements of the Borrower, and of each Loan Partyof the Specified Subsidiaries, dated for the two most recent fiscal years ended prior to the Restatement Effective DateDate as to which such financial statements are publicly available, substantially in (ii) unaudited interim consolidated financial statements of the form Borrower and of Exhibit G with appropriate insertions, executed by any Responsible Officer each Specified Subsidiary for each quarterly period ended subsequent to the date of such Loan Party, and including or attaching the documents referred latest financial statements delivered pursuant to in paragraph clause (di) of this Sectionparagraph as to which such financial statements are publicly available and (iii) an annual consolidated and consolidating income statement and annual cash flow statement and key liquidity and debt projections through and including the Borrower’s 2024 fiscal year, in each case, based on the 2021 fiscal year budget and the plans for 2022 through 2024, as adjusted for the Mountaineer Acquisition and associated distributable cash flow, EBITDA projections, pro forma adjustments, adjustments for dividends by the Borrower, debt reductions and deferred taxes, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in preparing such projections).
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers Borrower, the authorization of each Loan Party executing the Transactions and any other legal matters relating to the Borrower, the Loan Documents to which it is a partyor the Transactions, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving all in form and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (substance reasonably satisfactory to the extent such concept exists) from Administrative Agent and its counsel and as further described in the applicable Governmental Authority list of each Loan Party’s jurisdiction of incorporation, organization or formation.closing documents attached as Exhibit F.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days (5) days prior to the Restatement Effective Date, (i) all documentation and other information about regarding the Loan Parties as shall have been reasonably Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of the Borrower at least ten (10) days prior to the Restatement Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(if) The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by a Responsible Officer, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.03.
(g) The Administrative Agent and the Initial Term LoansBorrower shall have made arrangements for the payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all Loans outstanding (immediately prior to the Restatement Effective Date) under the Existing Credit Agreement (other than contingent indemnity obligations).
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each the Administrative Agent, the Company, Sterling Treasury, Sterling Jewelers Inc., the other party thereto Guarantors, Parent, the Required Lenders (as defined in the Existing Credit Agreement) and the Lenders identified on Schedule 2.01 either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission the sending, by Electronic Communication, of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement, (ii) reasonably satisfactory evidence that all Existing Revolving Loans shall have been repaid (and all accrued interest and fees in respect thereof shall have been paid) and all commitments in respect of the Existing Credit Agreement shall have been terminated, (iii) reasonably satisfactory evidence that all Existing Term Loans shall have been repaid (and all accrued interest and fees in respect thereof shall have been paid), and (iv) counterparts of the Guaranty signed on behalf of each Subsidiary Guarantor and the Administrative Agent. By executing this Agreement, the Required Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement waive any prepayment prior notice required to be delivered pursuant to the terms thereof with respect to the prepayment of Existing Revolving Loans and Existing Term Loans and the termination of all commitments in respect thereof to be made on the Restatement AgreementEffective Date.
(b) The Administrative Agent shall have received a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Weisscounsel for the Parent, Rifkind(iii) an opinion of the general counsel of Sterling Inc., an Ohio corporation and (iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPas to matters of English law, New York counsel for covering such matters relating to the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as to such matters Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the Borrower The Company hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section[Reserved].
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation[Reserved].
(e) The Administrative Agent shall have received upfront fees from the Borrower annual projections for the account of Parent and its consolidated Subsidiaries through the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent2021 fiscal year.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five 3 Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act, reasonably requested by the Administrative Agent at least 10 days prior to the Restatement Effective Date.
(ig) The Administrative Agent shall have received (in form and substance reasonably satisfactory to the Administrative Agent): (a) a good standing certificate (or analogous documentation if applicable and customary) for each Loan Party from the Secretary of State (or analogous Governmental Authority) of the jurisdiction of its organization, to the extent generally available in such jurisdiction and (b) a certificate of the Secretary or Assistant Secretary (or equivalent officer or director) of each Loan Party certifying (i) there have been no changes to the charter document of such Loan Party, as attached thereto and as certified as a recent date by the Secretary of State (or analogous Governmental Authority if such certification is available and customary) of the jurisdiction of its organization, since the date of the certification thereof by such Governmental Authority, (ii) the applicable organization document, as attached thereto, of such Loan Party as in effect on the date of such certification, (iii) resolutions or written consents of the governing body of such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party and (iv) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of each Borrower) authorized to request a Borrowing Request requesting or issuance of a Letter of Credit under the borrowing of the Initial Term Loans. Credit Agreement.
(h) The Administrative Agent shall have received, or have been authorized to deduct from the proceeds of the initial funding of the Loans, all fees and expenses due and payable on or prior to the Restatement Effective Date to the Administrative Agent, Lead Arrangers or Lenders, in each case, pursuant to the Loan Documents, to the extent invoiced at least two Business Days prior to the Restatement Effective Date. Administrative Agent shall notify Holdings, the Borrower Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The Notwithstanding the execution and delivery of this Agreement on the date hereof, this Agreement shall not become effective, the Existing Credit Agreement shall not be superseded as provided in Section 1.07, and the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either hereto (iincluding the Departing Lender) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory which, subject to the Administrative Agent (which Section 9.06(b), may include facsimile any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic transmission means that reproduces an image of a signed counterpart of this Agreement) that such party has signed a counterpart of the Restatement Agreementan actual executed signature page).
(b) The Administrative Agent shall have received a written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan PartiesBorrower, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special (ii) in-house counsel for the Loan PartiesBorrower, as to such matters as the Administrative Agent may reasonably request and in each case, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead ArrangerBorrower, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the The Borrower hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent Lenders shall have received a certificate (i) audited consolidated financial statements of the Borrower, and of each Loan Partyof the Specified Subsidiaries, dated for the two most recent fiscal years ended prior to the Restatement Effective DateDate as to which such financial statements are publicly available, substantially in (ii) unaudited interim consolidated financial statements of the form Borrower and of Exhibit G with appropriate insertions, executed by any Responsible Officer each Specified Subsidiary for each quarterly period ended subsequent to the date of such Loan Party, and including or attaching the documents referred latest financial statements delivered pursuant to in paragraph clause (di) of this Sectionparagraph as to which such financial statements are publicly available and (iii) an annual consolidated and consolidating income statement and annual cash flow statement and key liquidity and debt projections through and including the Borrower’s 2024 fiscal year, in each case, based on the 2021 fiscal year budget and the plans for 2022 through 2024, as adjusted for the Mountaineer Acquisition and associated distributable cash flow, EBITDA projections, pro forma adjustments, adjustments for dividends by the Borrower, debt reductions and deferred taxes, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in preparing such projections).
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the extent applicableorganization, as of a recent date by the applicable Governmental Authority, (ii) signature existence and incumbency certificates good standing of the Responsible Officers Borrower, the authorization of each Loan Party executing the Transactions and any other legal matters relating to the Borrower, the Loan Documents to which it is a partyor the Transactions, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving all in form and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (substance reasonably satisfactory to the extent such concept exists) from Administrative Agent and its counsel and as further described in the applicable Governmental Authority list of each Loan Party’s jurisdiction of incorporation, organization or formation.closing documents attached as Exhibit F.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days (5) days prior to the Restatement Effective Date, (i) all documentation and other information about regarding the Loan Parties as shall have been reasonably Borrower requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act, to the extent requested in writing of the Borrower at least ten (10) days prior to the Restatement Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(if) The Administrative Agent shall have received a Borrowing Request requesting certificate, dated the borrowing Restatement Effective Date and signed by a Responsible Officer, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.03.
(g) The Administrative Agent and the Initial Term LoansBorrower shall have made arrangements for the payment, prior to or simultaneously with the initial Loans hereunder, of all interest, fees and premiums, if any, on all Loans outstanding (immediately prior to the Restatement Effective Date) under the Existing Credit Agreement (other than contingent indemnity obligations).
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective 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. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Restatement Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (i) from each the Administrative Agent, the Company, Sterling Treasury, Sterling Jewelers Inc., the other party thereto Guarantors, Parent, the Required Lenders (as defined in the Existing Credit Agreement) and the Lenders identified on Schedule 2.01 either (iA) a counterpart of the Restatement this Agreement signed on behalf of such party or (iiB) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission the sending, by Electronic Communication, of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of this Agreement, (ii) reasonably satisfactory evidence that all Existing Revolving Loans shall be deemed to be repaid and such portion thereof that were ABR Loans shall be reborrowed as ABR Loans by the Restatement Agreementapplicable Revolving Borrower and such portion thereof that were Eurocurrency Loans shall be reborrowed as Eurocurrency Loans by the applicable Revolving Borrower (and all accrued interest and fees in respect thereof shall have been paid) (it being understood that execution of a Borrowing Notice in respect of the borrowing of such Revolving Loans and a funds flow memorandum indicating repayment of the Existing Revolving Loans of any Existing Revolving Lenders that are not Lenders shall be reasonably satisfactory evidence) and (iii) counterparts of the Guaranty signed on behalf of each Subsidiary Guarantor and the Administrative Agent.
(b) The Administrative Agent shall have received a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇(i) Weil, Weiss, Rifkind, ▇▇▇▇▇▇▇ Gotshal & ▇▇▇M▇▇▇▇▇ LLP, New York (ii) C▇▇▇▇▇▇ D▇▇▇ & P▇▇▇▇▇▇, counsel for the Loan PartiesParent, (iii) an opinion of the general counsel of Sterling Inc., an Ohio corporation and ▇(iv) S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLPas to matters of English law, special counsel for covering such matters relating to the Loan Parties, as to such matters the Loan Documents or the Transactions as the Administrative Agent may shall reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerrequest. Each of Holdings and the Borrower The Company hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of (x) Parent and its Subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Restatement Effective Date and (y) the Target Entity and its subsidiaries for the most recently completed fiscal year ended at least 90 days before the Restatement Effective Date and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of (x) Parent and its Subsidiaries and (y) the Target Entity and its subsidiaries, in each Loan Party, dated case for each subsequent fiscal quarter ended at least 45 days before the Restatement Effective Date, substantially in ; provided that filing of the form required financial statements with the Securities and Exchange Commission will satisfy this clause (c); provided further that the foregoing financial statements of Exhibit G with appropriate insertions, executed the Target Entity and its subsidiaries shall only be provided to the extent required by any Responsible Officer Rule 3-05 of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.Regulation S-X.
(d) The Administrative Agent shall have received a copy pro forma consolidated balance sheet and related pro forma consolidated statement of income of Parent and its Subsidiaries for the most recently completed fiscal year and as of and for each subsequent interim period ended on the last day of the most recently completed fiscal quarter ended at least 45 days prior to the Restatement Effective Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (iin the case of such balance sheet) each Organizational Document or at the beginning of each Loan Party certified, such period (in the case of such statement of income); provided that filing of such pro forma financial statements with the Securities and Exchange Commission will satisfy this clause (d); provided further that the foregoing pro forma financial statements shall only be provided to the extent applicable, as required by Article 11 of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.Regulation S-X.
(e) The Administrative Agent shall have received upfront fees from the Borrower annual projections for the account of Parent and its consolidated Subsidiaries through the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower and the Administrative Agent2019 fiscal year.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated on or prior to the Restatement Effective Date and (y) as to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five 3 Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act, reasonably requested by the Administrative Agent at least 10 days prior to the Restatement Effective Date.
(ig) The Administrative Agent shall have received (in form and substance reasonably satisfactory to the Administrative Agent): (a) a good standing certificate (or analogous documentation if applicable and customary) for each Loan Party from the Secretary of State (or analogous Governmental Authority) of the jurisdiction of its organization, to the extent generally available in such jurisdiction and (b) a certificate of the Secretary or Assistant Secretary (or equivalent officer or director) of each Loan Party certifying (i) there have been no changes to the charter document of such Loan Party, as attached thereto and as certified as a recent date by the Secretary of State (or analogous Governmental Authority if such certification is available and customary) of the jurisdiction of its organization, since the date of the certification thereof by such Governmental Authority, (ii) the applicable organization document, as attached thereto, of such Loan Party as in effect on the date of such certification, (iii) resolutions or written consents of the governing body of such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party and (iv) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of each Borrower) authorized to request a Borrowing Request requesting or issuance of a Letter of Credit under the borrowing Credit Agreement.
(h) The Administrative Agent shall have received, or have been authorized to deduct from the proceeds of the Initial Term initial funding of the Loans, all fees and expenses due and payable on or prior to the Restatement Effective Date to the Administrative Agent, Lead Arrangers or Lenders, in each case, pursuant to the Loan Documents, to the extent invoiced at least two Business Days prior to the Restatement Effective Date.
(i) The Specified Representations shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the Restatement Effective Date. The Administrative Agent shall notify Holdings, the Borrower Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The Without affecting the rights of Parent, the Company or any Subsidiary hereunder at all times prior to the Restatement Effective Date, the amendment and restatement of the Original Agreement in the form hereof and the obligations of the Lenders to make Loans and the Issuing Banks hereunder on the Restatement Effective Date shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.0210.01):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (i) a counterpart Agent’s receipt of the Restatement Agreement signed on behalf following, each of such party which shall be originals or facsimiles (iifollowed promptly by originals) written evidence unless otherwise specified, each properly executed by a Responsible Officer of each signing party, each in form and substance reasonably satisfactory to the Administrative Agent Agent:
(which may include facsimile or other electronic transmission of a signed counterpart i) executed counterparts of this Agreement;
(ii) a Note executed by the applicable Borrower in favor of each Lender requesting a Note;
(iii) the Collateral Documents listed on Schedule 4.01, duly executed by each Loan Party thereto, together with:
(A) to the extent not already delivered, certificates representing the Equity Interests referred to therein (to the extent such Equity Interests are certificated) accompanied by undated stock powers executed in blank,
(B) copies of all searches with respect to the Collateral, and all documents and instruments required by Law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or continue the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents, shall have been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or recording, and
(C) evidence that all other actions, recordings and filings of or with respect to the Collateral Documents that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created or continued thereby and on the terms thereof shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party has signed or is to be a counterpart party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification except to the extent that failure to be so qualified is not reasonably likely to result in a Material Adverse Effect;
(vi) a certificate dated as of the Restatement AgreementEffective Date and signed by a Responsible Officer of the Company certifying that there has been no change, occurrence or development since December 31, 2006, and, except as set forth on Schedule 5.06, no action, suit, investigation or proceeding shall be pending or, to the knowledge of any of the Loan Parties, threatened, that, in any case, either individually or in the aggregate, has had, or in the case of any action, suit, investigation or proceeding, is reasonably likely to result in, a material adverse effect on the operations, assets or condition (financial or otherwise) of the Restricted Parties, taken as a whole;
(vii) a certificate dated as of the Restatement Effective Date and signed by a Responsible Officer of the Company confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02;
(viii) a certificate dated as of the Restatement Effective Date, attesting to the Solvency of the Company and of the Restricted Parties (taken as a whole), in each case after giving effect to the Transactions, from the Chief Financial Officer of the Company;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named; and
(x) a Committed Loan Notice relating to the Credit Extensions to be made on the Restatement Effective Date.
(b) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each of (i) King & Spalding LLP, counsel for Parent and the Borrowers, substantially in the form of Exhibit G-1, (ii) Philippe Partners, Luxembourg counsel for Parent and the Borrowers, substantially in the form of Exhibit ▇-▇, ▇▇▇ (▇▇▇) ▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special UK counsel for the Loan PartiesAdministrative Agent, as to such matters as substantially in the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangerof Exhibit G-3. Each of Holdings Parent and the Borrower Borrowers hereby requests such counsels counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated all fees accrued under the Restatement Effective Date, substantially in Original Agreement through the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of day immediately preceding the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, all other fees and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans in the other amounts previously agreed between the Borrower due and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer or chief operating officer of the Borrower (x) in the form of Exhibit Q certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated payable on or prior to the Restatement Effective Date and (y) as Date, including, to the satisfaction extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(d) Each Lender (as defined in the Original Agreement) shall have received payment in full of the principal of and interest accrued on each Loan (as defined in the Original Agreement) held by it and any amounts payable pursuant to Section 3.05 of the Original Agreement.
(e) All material board, governmental, shareholder and material third party consents and approvals necessary in connection with the Transactions shall have been obtained and shall remain in effect; all applicable waiting periods in connection with the Transactions shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions set forth on any of the Restricted Parties or the Transactions.
(f) The Transactions (other than the Share Repurchase) shall have been consummated or shall be consummated concurrently with the initial Borrowing hereunder in Section 4.02accordance with applicable Law and all material agreements, instruments and documents relating thereto (and no provision of any of the foregoing shall have been waived, amended or otherwise modified in a manner material and adverse to the Lenders without the consent of the Administrative Agent).
(g) The Initial Lenders and the Arranger shall have received copies of, and be reasonably satisfied with, all material agreements, instruments and documents relating to the Transactions.
(h) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five Business Days prior to the Restatement Effective Date, received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(i) The Administrative Agent shall have received a Borrowing Request requesting the borrowing of the Initial Term Loans. The Administrative Agent shall notify HoldingsParent, the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder and of any Issuing Bank to issue, amend, renew or extend any Letter of Credit hereunder, and the incorporation of the Existing Letters of Credit as Letters of Credit hereunder, shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.01) at or prior to 5:00 p.m., New York City time, on April 30, 2007 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). It is understood and agreed that no term of the amendment and restatement contemplated hereby shall be effective until the Restatement Effective Date occurs, and that the Original Agreement shall continue in full force and effect without regard to the amendment and restatement contemplated hereby until the Restatement Effective Date.
Appears in 1 contract
Restatement Effective Date. The obligations of the Lenders to make Loans hereunder on the Restatement Effective Date This Agreement shall not become effective until the date on which each of the following conditions shall be is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each other party thereto either (including by telecopy or email transmission) (i) from the Required Lenders (as defined in the Existing Credit Agreement), Addenda signed on behalf of such Lenders, (ii) from each Loan Party to the relevant Loan Document, a counterpart of such Loan Document signed on behalf of such Loan Party, (iii) from each Credit Party party thereto, a counterpart of the Restatement LMC Pledge Agreement signed on behalf of such party or Credit Party and (iiiv) written evidence an Acknowledgement and Consent in the form attached to the LMC Pledge Agreement, executed and delivered by the Borrower.
(b) Pursuant to assignment documentation reasonably satisfactory to the Administrative Agent (which may include facsimile the “LMC Assignment Agreement”), LMC or any of its subsidiaries (other electronic transmission of a than the Borrower and its Subsidiaries) shall have purchased “Loans” under and as defined in the Existing Credit Agreement, from Lenders that have signed counterpart of this AgreementAddenda, to the extent necessary to effectuate the Loan allocations set forth on Schedule 1.01A, with any such “Loans” so purchased being concurrently contributed directly or indirectly to the Borrower for cancellation in exchange for no consideration (other than existing equity investments in the Borrower) that and such party has signed a counterpart of Loans shall be deemed to be cancelled on the Restatement AgreementEffective Date.
(bc) The Administrative Agent shall have received a favorable written opinions opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLPL.L.C., special counsel for the Loan Credit Parties, as substantially in the form of Exhibit B. The Borrower hereby requests such counsel to deliver such matters opinion.
(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 the Credit Parties, the authorization of the Transactions (excluding use of proceeds) and any other legal matters relating to the Credit Parties, this Agreement or the Transactions (excluding use of proceeds), including a certificate of each Credit Party substantially in the form of Exhibit F, all in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arranger. Each of Holdings and the Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Restatement Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Restatement Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formationcounsel.
(e) The Administrative Agent shall have received upfront fees from a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming that (a) the representations and warranties of the Borrower for set forth in the account Credit Agreement are true and correct as of the Lenders providing Initial Term Loans in the amounts previously agreed between the Borrower Restatement Effective Date and the Administrative Agent(b) no Default has occurred and is continuing.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, (i) a counterpart fee for each Lender that signs an Addendum equal to 0.75% of a Reaffirmation Agreement signed on behalf the sum of such party or Lender’s “Revolving Commitment” and “Term Loan” under and as defined in the Existing Credit Agreement prior to giving effect to this Agreement (including the transactions described in Section 4.01(b)) and (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile extent invoiced, reimbursement or other electronic transmission payment of a signed counterpart all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder; provided that, no fee will be paid on “Revolving Commitments” under and as defined in the Existing Credit Agreement to the extent not funded in breach of a Reaffirmation Agreement) that such party has signed a counterpart of a Reaffirmation the Existing Credit Agreement.
(g) Since December 31, 2008, there has been no event that has had or would reasonably be expected to have a Material Adverse Effect.
(h) The Administrative Agent shall have received the results of a certificate from the chief financial officer or chief operating officer recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the Borrower (x) in the form of Exhibit Q certifying as to the solvency assets of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to be consummated Loan Parties except for Liens permitted by Section 6.02 or discharged on or prior to the Restatement Effective Date and (y) as pursuant to documentation satisfactory to the satisfaction of the conditions set forth in Section 4.02.
(h) The Administrative Agent and the Lead Arranger shall have received, at least five Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActAgent.
(i) The Administrative Collateral Agent shall have received the certificates representing the Equity Interests pledged pursuant to the Security Agreement or the LMC Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a Borrowing Request requesting the borrowing duly authorized officer of the Initial Term Loanspledgor thereof.
(j) Each Uniform Commercial Code financing statement or other filing required by the Security Agreement shall be in proper form for filing.
(k) The Collateral Agent shall have received insurance certificates satisfying the requirements of Section 4.2(b) of the Security Agreement.
(l) The Wachovia Credit Agreement shall have concurrently become effective. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Restatement Effective Date. The obligations effectiveness of this Agreement is subject to the Lenders to make Loans hereunder on the Restatement Effective Date shall not become effective until the date on which each satisfaction of the following conditions shall be satisfied (or waived in accordance with Section 9.02):conditions:
(a) The Administrative Agent (or its counsel) shall have received from Lenders constituting the Required Lenders (under and as defined in the Original Credit Agreement), the Administrative Agent, the Borrowers, each other party thereto Term A Lender, each Term B Lender, each Revolving Facility Lender and each Issuing Bank either (i) a counterpart of the Restatement this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other by electronic means transmission of a signed counterpart signature page of this Agreement) that such party has signed a counterpart of the Restatement this Agreement.
(b) The Administrative Agent shall have received written opinions (addressed such copies of amendments to the Loan Documents as may be requested by the Administrative Agent in connection with the transactions contemplated by the Restatement to ensure the continued validity, enforceability and priority of the Lenders Loan Documents after giving effect to the Restatement as may have been reasonably requested by the Administrative Agent together with such opinions of counsel, certificates, and dated other documents as the Administrative Agent may have reasonably requested in connection therewith.
(c) All accrued interest and fees payable hereunder through the Restatement Effective Date shall have been paid.
(d) The Administrative Agent shall have received from the Company an upfront fee payable for the account of each Lender party to this Agreement on the Restatement Effective Date equal to (i) 0.05% of the aggregate principal amount of such Lender’s Term A Loan Commitment and Revolving Facility Commitment on the Restatement Effective Date up to the aggregate principal amount of “Term A Loans” and “Revolving Facility Commitments” if any, held by such Lender immediately prior to the Restatement Effective Date and (ii) 0.25% of the aggregate principal amount of such Lender’s Term A Loan Commitment and Revolving Facility Commitment on the Restatement Effective Date in excess of the amount described in subclause (i) above.
(e) The Administrative Agent shall have received (or be reasonably satisfied that it will receive promptly after the funding of Loans on the Restatement Effective Date), on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of (i) of ▇P▇▇▇, Weiss, Rifkind, ▇W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, as (ii) Taylors in association with Walkers, Bermuda counsel for the Loan Parties, (iii) M▇▇▇▇ ▇▇▇▇▇ JSM, M▇▇▇▇▇▇▇ Islands counsel for the Loan Parties, (iv) G▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Bahamas counsel for the Loan Parties, and (v) C▇▇▇▇ & Co, maritime counsel for the Loan Parties, in each case (A) dated the Restatement Effective Date, (B) addressed to such matters as each Issuing Bank, the Administrative Agent, the Collateral Agent may reasonably request and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Lead Arranger. Each of Holdings and Loan Documents as the Borrower hereby requests such counsels to deliver such opinionsAdministrative Agent shall reasonably request.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, Party dated the Restatement Effective DateDate and certifying:
(i) a copy of the certificate or articles of incorporation, substantially in the form certificate of Exhibit G with appropriate insertionslimited partnership, executed by any Responsible Officer certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, and including or attaching the documents referred to (1) if available from an official in paragraph (d) of this Section.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certifiedsuch jurisdiction, to the extent applicable, certified as of a recent date by the applicable Governmental AuthoritySecretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) signature and incumbency certificates a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of the Responsible Officers such jurisdiction) of each such Loan Party executing the Loan Documents to which it is as of a party, recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors and/or similar (or equivalent governing bodies body) of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified dated as of the Restatement Effective Date by its secretaryto which such person is a party and, an assistant secretary in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or a Responsible Officer as being amended and are in full force and effect without modification or amendment, and on the Restatement Effective Date,
(ivv) a good standing certificate (as to the extent such concept exists) from the applicable Governmental Authority incumbency and specimen signature of each officer executing any Loan Party’s jurisdiction of incorporation, organization Document or formation.
(e) The Administrative Agent shall have received upfront fees from the Borrower for the account of the Lenders providing Initial Term Loans any other document delivered in the amounts previously agreed between the Borrower and the Administrative Agent.
(f) The Administrative Agent (or its counsel) shall have received from each Loan Party either (i) a counterpart of a Reaffirmation Agreement signed connection herewith on behalf of such party or Loan Party, and
(iivi) written evidence satisfactory as to the Administrative Agent (which may include facsimile absence of any pending proceeding for the dissolution or other electronic transmission liquidation of a signed counterpart such Loan Party or, to the knowledge of a Reaffirmation Agreement) that such party has signed a counterpart person, threatening the existence of a Reaffirmation Agreement.such Loan Party;
(g) The Administrative Agent Lenders shall have received a solvency certificate from the chief financial officer or chief operating officer of the Borrower (x) substantially in the form of Exhibit Q certifying as to the solvency C and signed by a Financial Officer of the Borrower Company and its Subsidiaries on a consolidated basis after giving effect to solvency certificate signed by a Financial Officer of the Transactions Co-Borrower.
(h) The elements of the Collateral and Guarantee Requirement required to be consummated satisfied on or prior to the Restatement Effective Date and (yor promptly after the Restatement Effective Date, as applicable) as with respect to the satisfaction Specified Additional Subsidiary Guarantor and the Specified Additional Vessel shall have been satisfied and the Administrative Agent shall have received the results of a search of Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida, the jurisdiction in which such Loan Party is formed and existing and lien searches of any other office or jurisdiction in which the Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with copies of the conditions set forth 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 Liens or have been released; provided that, notwithstanding the terms of this Section 4.02(h) and Section 4.02(k), to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than (A) execution and delivery of the Additional Subsidiary Guarantor Accession Supplement to be delivered by the Specified Additional Subsidiary Guarantor, (B) execution and delivery of the Subsidiary Guarantor Pledge Agreement to be delivered by the holder of Equity Interests of the Specified Additional Subsidiary Guarantor (and, if required under the applicable governing law, the Specified Additional Subsidiary Guarantor), (C) any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement, the registration or recording of a Vessel Mortgage with respect to the Specified Additional Vessel in the appropriate ship registry, or (D) the delivery of stock certificates or other instruments representing Equity Interests of the Specified Additional Subsidiary Guarantor) is not able to be provided on the Restatement Effective Date after the Company’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Restatement Effective Date in accordance with Section 4.025.10.
(hi) JPMorgan Chase Bank, N.A. shall have received all fees payable thereto or to any Lender on or prior to the Restatement Effective Date and, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, A▇▇▇▇▇▇ (Bermuda) Limited, H▇▇▇▇ & J▇▇▇▇▇▇ and W▇▇▇▇▇, ▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(j) The Administrative Agent and the Lead Arranger Lenders shall have received, at least five three Business Days prior to the Restatement Effective Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Restatement Effective Date by the Administrative Agent or the Lead Arranger that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActPATRIOT Act that has been requested by the Administrative Agent in writing at least ten Business Days prior to the Restatement Effective Date.
(k) The Collateral Agent shall have received (or shall be reasonably satisfied that it will receive promptly after the funding of Loans on the Restatement Effective Date), with respect to the Specified Additional Vessel:
(i) The evidence that the Vessel Mortgage has been duly executed and delivered by the Specified Additional Subsidiary Guarantor and duly registered in accordance with the laws of the appropriate ship registry and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage or first preferred ship mortgage and subsisting Lien securing the Obligations on the Specified Additional Vessel in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) a Transcript of Register or Certificate of Ownership and Encumbrance issued by the appropriate ship registry stating that the Specified Additional Vessel is owned by the Specified Additional Subsidiary Guarantor and that there are of record no liens or other encumbrances on the Specified Additional Vessel except the Vessel Mortgage in favor of the Collateral Agent and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society to the effect that the Specified Additional Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the Specified Additional Vessel naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
(v) copies of the DOC and SMC referred to in clause (a) of the definition of “ISM Code Documentation,” for the Specified Additional Vessel certified as true and in effect by the Specified Additional Subsidiary Guarantor; and (y) copies of such ISM Code Documentation for the Specified Additional Vessel as the Administrative Agent shall have received a Borrowing Request requesting may by written notice to the borrowing of the Initial Term Loans. The Administrative Agent shall notify Holdings, the Borrower and the Lenders of Company request no later than two Business Days before the Restatement Effective Date, certified as true and complete in all material respects by the Specified Additional Subsidiary Guarantor; and
(vi) a copy of the International Ship Security Certificate for the Specified Additional Vessel issued under the ISPS Code, certified as true and in effect by the Specified Additional Subsidiary Guarantor. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Restatement Effective Date specifying its objection thereto and such notice Lender shall be conclusive and bindingnot have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)