Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent: (a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders, (ii) amended and restated Notes, executed by the Borrowers, (iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement, (iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization, (v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral; (vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens, (vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers, (viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers, (ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and (x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment; (b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower; (c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof; (d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and (e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (StratCap Digital Infrastructure REIT, Inc.), Credit Agreement (StratCap Digital Infrastructure REIT, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This First Amendment shall be effective as of the Effective Datedate first above written, subject to the satisfaction of the following conditions precedentfollowing:
(a) the The Administrative Agent Lender shall have received counterparts of this First Amendment executed by each Lender;
(b) The Administrative Lender shall have received counterparts of this First Amendment executed by the Borrower and by each Guarantor;
(c) The Administrative Lender shall have received a Subsidiary Guaranty executed by Dataflex;
(d) The Borrower shall have pledged to the Administrative Lender, for the benefit of the followingLenders, as additional security for the Obligations, all of the issued and outstanding capital stock and other indicia of ownership, whether now existing or hereafter arising, of the Acquisition Subsidiary, pursuant to documentation acceptable to the Administrative Lender;
(e) The Administrative Lender shall have received the Replacement Notes, executed by the Borrower;
(f) The Administrative Lender shall have received indorsement(s), in form and substance reasonably satisfactory acceptable to the Administrative Agent:
(i) a counterpart of this Amendment executed by the BorrowersLender, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements existing mortgagee title policy in favor of the Administrative Agent Lender and the Lenders, covering the Borrower's Corporate Headquarters, confirming that the Lien in favor of the Administrative Lender and the Lenders, and such existing mortgagee title policy, with respect to all insurance policies covering Collateralthe Borrower's Corporate Headquarters cover the Replacement Facility B Notes and that neither such Lien nor such mortgagee title policy are adversely affected by the execution and delivery of such Replacement Facility B Notes;
(vig) Prior to the results consummation of UCC Lien searches showing all financing statements the transactions contemplated by the Dataflex Acquisition Documents, the Administrative Lender shall have received such corporate resolutions, opinions, certificates and other information, documents and papers as the Administrative Lender shall have reasonably requested, in each case, executed by all necessary or instruments on file against each New Borrower appropriate parties and in the appropriate filing offices, such searches to be as of a date form and substance acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse EffectLender; and
(eh) The transactions contemplated by the representations Dataflex Acquisition Documents shall have been consummated in accordance with the terms and warranties set forth in Section 7 hereof shall be true and correct in all material respects as provisions of the date hereofDataflex Acquisition Documents, to the reasonable satisfaction of the Administrative Lender.
Appears in 2 contracts
Sources: Credit Agreement (Safeguard Scientifics Inc Et Al), Credit Agreement (Compucom Systems Inc)
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Agreement is subject to the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received each Agent’s receipt of the following, each properly executed (if applicable) by a Responsible Officer of the signing Loan Party (which, subject to Section 10.10(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) a counterpart executed counterparts of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,Agreement from each party hereto;
(ii) amended and restated Notes, a Note executed by the Borrowers,Borrower in favor of each Lender requesting a Note;
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to require evidencing the extent required under the Security Agreement,
(iv) a certificate identity, authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying thereof authorized to act as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority Responsible Officer in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment Agreement and the other Loan Documents to which it such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and (D) certificates as of a recent date of the that each Loan Party is validly existing and in good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,standing;
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an customary opinion of T▇▇L▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S& W▇▇▇▇▇▇ LLP, counsel to the New Borrowers,Loan Parties, and V▇▇▇▇▇▇ LLP, special Maryland counsel to the Guarantor, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied;
(vii) the Audited Financial Statements of the Guarantor referred to in Section 5.05(a); and
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset solvency certificate from the chief financial officer, treasurer or other senior financial officer of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating Borrower substantially in the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;form attached hereto as Exhibit F.
(b) Any fees required to be paid on or before the Lenders Closing Date pursuant to the Fee Letters shall have received been paid.
(c) The Borrower shall have paid all reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least five (5) Business Days in advance prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Effective closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date Refinancing shall be consummated substantially simultaneously with the Closing Date.
(xi) The Administrative Agent shall have received, at least five days prior to the Closing Date, all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, regarding the PATRIOT Act and any Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Closing Date and (yii) if any New to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such New Borrower;
Beneficial Ownership Certification (cprovided 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). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or notice from such Lender prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this AmendmentThis Amendment shall become effective when, and only when, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent Bank shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the BorrowersJLM Domestic Entities, MacDonald and the Bank, and Sections 1, 2 and 3 hereof shall become effective when, and only when, the Administrative AgentBank shall have additionally received all of the following documents, each document (unless otherwise indicated) being dated the date of receipt thereof by the Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Bank:
(a) The Amended and Restated Promissory Note in the form of Exhibit A1 hereto.
(b) Certified copies of (i) the resolutions of the Board of Directors of each JLM Domestic Entity approving this Amendment and the Lenders,
matters contemplated hereby and (ii) amended all documents evidencing other necessary corporate action and restated Notesgovernmental approvals, executed by if any, with respect to this Amendment and the Borrowers,matters contemplated hereby.
(iiic) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a A certificate of the secretary, assistant secretary Secretary or other Responsible Officer an Assistant Secretary of each New Borrower JLM Domestic Entity certifying as to the incumbency names and genuineness true signatures of the signature of each officer officers of such New Borrower executing the Loan Documents JLM Domestic Entity authorized to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of sign this Amendment and the other Loan Documents documents to which it is a partybe delivered hereunder.
(d) A consent in the form appended hereto as Annex I (the "Consent"), executed by JLM Canada.
(e) Certified copies of (i) the resolutions of the Board of Directors of JLM approving the Consent and the matters contemplated hereby and thereby and (Dii) certificates as of a recent date of the good standing or active statusall documents evidencing other necessary corporate action and governmental approvals, as applicableif any, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable Consent and lender endorsements in favor the matters contemplated hereby.
(f) A certificate of the Administrative Agent with respect Secretary or an Assistant Secretary of JLM Canada certifying the names and true signatures of the officers of JLM Canada authorized to all insurance policies covering Collateral;sign the Consent.
(vig) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an A favorable opinion of T▇▇▇▇▇▇▇ PJohn ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLPte, counsel to for the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true JLM Domestic Entities and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit AgreementMacDonald, to the extent invoiced on or prior to effect that this Amendment has been duly authorized, executed and delivered by the date hereof;
(d) no Default (other than the Specified Default) shall have occurred JLM Domestic Entities and be continuingMacDonald, and since that the effective date amended and restated Revolving Credit Note has been duly authorized, executed and delivered by JLM Marketing, Inc., and such instruments constitute the legal, valid and binding obligations of such parties, enforceable against such parties in accordance with their respective terms, and confirming the most recent financial statements delivered opinion of such counsel furnished on June 15, 1994 pursuant to Section 7.1(a4.01 (n) of the Credit Agreement, no event or circumstance exists that, either individually or in with references therein to the aggregate, has had or could reasonably be expected Credit Agreement to have a Material Adverse Effect; andmean the Credit Agreement as amended by this Amendment.
(eh) A favorable opinion of Brans, Lehun, Bald▇▇▇ & ▇hampagne, counsel for JLM Canada, to the effect that the Consent has been duly authorized, executed and delivered by JLM Canada and constitutes the legal, valid and binding obligation of JLM Canada, enforceable against JLM Canada in accordance with its terms, and confirming the opinion of such counsel furnished on June 15, 1994 pursuant to Section 4.01(n) of the Credit Agreement, with references therein to the Credit Agreement to mean the Credit Agreement as amended by this Amendment.
(i) A certificate signed by a duly authorized officer of each JLM Domestic Entity stating that:
(i) The representations and warranties set forth contained in Section 7 5 hereof shall be true are correct on and correct in all material respects as of the date hereofof such certificate as though made on and as of such date, and
(ii) No event has occurred and is continuing which constitutes a Default or Event of Default.
Appears in 2 contracts
Sources: Credit Agreement (JLM Industries Inc), Credit Agreement (JLM Industries Inc)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be deemed effective as of the first date (such date being referred to herein as the “Third Amendment Effective Date, subject to the satisfaction ”) on which all of the following conditions precedentprecedent have been satisfied or waived in writing:
(a) the Administrative Agent shall have received each Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be original, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative AgentAgent and the Lenders constituting the Required Lenders:
(i) a counterpart executed counterparts of this Amendment executed by from each of the BorrowersLoan Parties, the Administrative Agent, Agent and the Lenders constituting the Required Lenders,;
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to reasonably require evidencing the extent required under the Security Agreement,
(iv) a certificate identity, authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying thereof authorized to act as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority Responsible Officer in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment Agreement and the other Loan Documents to which it such Loan Party is a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and (D) certificates as of a recent date of the each Loan Party is validly existing, in good standing or active status, as applicable, of such New Borrower under the laws of and qualified to engage in business in its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(viiv) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an favorable customary opinion of T▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ P& ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(v) a favorable customary opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that (1) no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (A) challenges the validity or enforceability of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect and (2) since December 31, 2023, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate, substantially in the form of Exhibit E to the Amended Credit Agreement or otherwise satisfactory to the Administrative Agent, signed by a Responsible Officer of the Parent and evidencing that, giving pro forma effect as of December 31, 2023 to the transactions to occur on or about the Third Amendment Effective Date, as of the date of the Third Amendment Effective Date, the Loan Parties are in pro forma compliance with the financial covenants contained in Section 7.11 of the Amended Credit Agreement, setting forth a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter ending December 31, 2023, and including a schedule of Unencumbered Eligible Properties, all in form and detail reasonably satisfactory to the Administrative Agent; and
(viii) an executed joinder agreement to the Guaranty from each Direct Owner and Indirect Owner of each Unencumbered Property listed on Schedule 1 included in Annex II that is not already party to the Guaranty Agreement, including, for the avoidance of doubt, Williamsburg ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ S.▇.▇., ▇▇▇▇▇▇▇▇▇▇▇▇ LLP▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, counsel to ▇.▇.▇. and ESRT ▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.▇., together with the New Borrowers,
items referenced in Sections 4.01(a)(iii) and (viiiiv) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true Amended Credit Agreement with respect to each such Direct Owner and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;Indirect Owner.
(b) At least five (5) Business Days prior to the Lenders Third Amendment Effective Date, the Administrative Agent and each Lender shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under including the PATRIOT Act, the Beneficial Ownership Regulation, Regulation (including a Beneficial Ownership Certification Certification) and other customary requirements, in relation each case, to the extent such New Borrower;information is requested in writing at least ten (10) Business Days prior to the Third Amendment Effective Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent shall have received payment or evidence of payment (directly to such counsel if requested by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, Administrative Agent) to the extent invoiced on or at least three (3) Business Days prior to the date hereof;
Third Amendment Effective Date (d) no Default which invoice may be in summary form), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (other than provided that such estimate shall not thereafter preclude a final settling of accounts between the Specified Default) shall have occurred Borrower and be continuing, and since the effective date Administrative Agent). Without limiting the generality of the most recent financial statements delivered pursuant to Section 7.1(a) provisions of the last paragraph of Section 9.03 of the Amended Credit Agreement, no event or circumstance exists that, either individually or for purposes of determining compliance with the conditions specified in the aggregate, this Section 3 each Lender that has had or could reasonably signed this Amendment shall be expected 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 Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofLender.
Appears in 2 contracts
Sources: Credit Agreement (Empire State Realty Trust, Inc.), Credit Agreement (Empire State Realty OP, L.P.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become --------------------------- effective as of the Effective Datedate first above written (the "EFFECTIVE DATE") when, subject to the satisfaction of and only when, the following conditions precedentprecedent have been satisfied:
(a) the Administrative The Agent shall have received each of on or before the followingEffective Date, in form and substance reasonably satisfactory to the Administrative AgentAgent and in sufficient copies for each Lender Party:
(i) a counterpart counterparts of this Amendment executed by the Borrowers, the Administrative Agent, Borrower and the Required Lenders and each Revolving Credit Lender or, as to any of the Lenders,, advice satisfactory to the Agent that such Lender has executed this Amendment;
(ii) amended and restated Notes, the consent attached hereto executed by each Guarantor (the Borrowers,"CONSENT");
(iii) a joinder certified copies of (i) the resolutions of the Board of Directors of (A) the Borrower approving this Amendment and the matters contemplated hereby, and (B) each Guarantor approving the Consent and the matters contemplated thereby, and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Security Agreement, executed by Consent and the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,matters contemplated hereby and thereby;
(iv) a certificate of the secretary, assistant secretary Secretary or other Responsible Officer an Assistant Secretary of each New Borrower Loan Party certifying as to the incumbency names and genuineness true signatures of the signature of each officer officers of such New Borrower executing the Loan Documents Persons authorized to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of sign this Amendment and the Consent and the other Loan Documents documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,be delivered hereunder; and
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an favorable opinion of T▇▇▇▇▇▇▇ P, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel for the Borrower, as to the New Borrowers,
due execution, validity and enforceability of this Amendment, the Loan Documents (viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated as amended by this Amendment;), and the Consent and as to such other matters as any Lender through the Agent may reasonably request.
(b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgement of the Lenders shall have received at least five Business Days in advance of that restrains, prevents or imposes materially adverse conditions upon the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;transactions contemplated hereby.
(c) On the Administrative Effective Date, the following statements shall be true and the Agent shall have received payment or evidence of payment a certificate signed by the Borrowers a duly authorized officer of the costs and expenses referred in Section 12.3 of Borrower, dated the Credit AgreementEffective Date, to the extent invoiced on or prior to the date hereof;stating that:
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(ei) the representations and warranties set forth contained in Section 7 hereof shall be true 4.01 of the Credit Agreement are correct on and correct in all material respects as of the date Effective Date; and
(ii) no Default exists under the Credit Agreement.
(d) The Borrower shall have paid to the Agent for the account of each Lender that executes this Amendment an amendment fee equal to 0.25% on the sum of the Commitments of each such Lender.
(e) The Borrower shall have paid all costs and expenses required under Section 5 hereof. This Amendment is subject to the provisions of Section 8.01 of the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Telespectrum Worldwide Inc), Credit Agreement (Telespectrum Worldwide Inc)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder effectiveness of the New Borrowers amendment and restatement of the Existing Credit Agreement pursuant to Section 3 1 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Agreement shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each of the Borrowers, the Required Lenders under the Existing Credit Agreement and the U.S. Term Lenders either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received each a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of K&L Gates LLP, U.S. counsel to the followingLoan Parties, K&L Gates LLP, U.K. counsel to the Loan Parties, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by Agent and covering such matters relating to the BorrowersLoan Parties, the Administrative AgentLoan Documents, this Agreement and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer transactions contemplated hereby as the Administrative Agent may request shall reasonably request. The Company hereby requests such counsels to perfect its Lien on any Collateral to the extent required under the Security Agreement,deliver such opinions.
(ivc) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency The Administrative Agent shall have received such documents and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to or its counsel may reasonably request, all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements in form and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable substance reasonably satisfactory to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,its counsel.
(viid) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the The Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs (i) all fees and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced other amounts due and payable on or prior to the date hereof;
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 Borrowers under the Loan Documents and (dii) no Default (other than all accrued and unpaid interest under the Specified DefaultExisting Credit Agreement and all accrued and unpaid fees under Sections 2.12(a) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a2.12(b) of the Existing Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects . If any LC Disbursements are outstanding as of the date hereofRestatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon. The Administrative Agent shall notify the Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder effectiveness of the New Borrowers pursuant to Section 3 of this Amendment, amendment and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as restatement of the Effective Date, Replaced Credit Agreement by this Agreement is subject to the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) a counterpart fully executed counterparts of this Amendment executed by Agreement and the BorrowersGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lenders,Borrower;
(ii) amended and restated Notes, executed by a Disbursement Instruction Agreement effective as of the Borrowers,Closing Date;
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to perfect its Lien on any Collateral act as a Responsible Officer in connection with this Agreement and the other Loan Documents to the extent required under the Security Agreement,which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of counsel to the Borrower (on behalf of each of the Loan Parties), addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of the secretary, assistant secretary or other a Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of Party either (A) the articles attaching copies of incorporation or comparable organizational documents of such New Borrower all applicable consents, licenses and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority approvals required in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing connection with the execution, delivery and performance of this Amendment by such Loan Party and the other validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations, (B) all governmental, shareholder and third party consents and approvals necessary for the Loan Parties to enter into the Loan Documents and fully perform thereunder, if any, have been obtained, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) each of the Loan Parties is solvent, (2) no Default or Event of Default exists, (3) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations were true and correct as of such earlier date, and (y) for purposes of the representations and warranties set forth in Section 5.13, to the extent of changes resulting from transactions and other events contemplated or not prohibited by this Agreement or the other Loan Documents and changes occurring in the ordinary course of Borrower’s business, and (4) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.11 (and including detailed calculations of each such financial covenant); (D) certificates as of a recent that, to such Responsible Officer’s knowledge, there has been no event or circumstance since the date of the good standing Audited Financial Statements that has had or active statuscould be reasonably expected to have, as applicableeither individually or in the aggregate, of such New Borrower under a Material Adverse Effect; and (E) the laws of its jurisdiction of organization,current Debt Ratings;
(vviii) copies of insurance certificates describing evidence that all insurance policies required by Section 7.6 of the Credit Agreement with respect to be maintained pursuant to the New BorrowersLoan Documents has been obtained and is in effect; and
(ix) such other assurances, together with loss payable and lender endorsements in favor of certificates, documents or consents as the Administrative Agent with respect to all insurance policies covering Collateral;or the Required Lenders reasonably may require.
(vib) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower There shall not have occurred a material adverse change since December 31, 2017, in the appropriate filing officesoperations, such searches business, properties, liabilities (actual or contingent), or financial condition of the Borrower and the other Consolidated Parties taken as a whole, as reasonably determined by the Administrative Agent.
(c) There shall not exist any action, suit, investigation, or proceeding pending or threatened, in any court or before any arbitrator or governmental authority that could have a Material Adverse Effect, as reasonably determined by the Administrative Agent.
(d) Any fees required to be as paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of a date acceptable counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and reflecting no Liens against any disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Property closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the New Borrower other than Permitted Liens,and the Administrative Agent).
(viif) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of The Borrower and each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders Loan Party shall have received at least five Business Days provided all information reasonably requested by the Administrative Agent and each Lender in advance of the Effective Date (x) all documentation order to comply with applicable “know your customer” and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and Patriot Act.
(yg) if any New Borrower Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership RegulationRegulation shall, a collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such New Borrower;
Loan Party or such Subsidiary, in each case, at least five (c5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or notice from such Lender prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Term Loan Agreement (Tanger Properties LTD Partnership /Nc/), Term Loan Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, (a) This Amendment shall be become effective as of the Effective Datedate first above written when, subject to the satisfaction of the following conditions precedent:
(a) and only when, the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ix) a counterpart counterparts of this Amendment executed by the BorrowersBorrower, the Administrative AgentRequired Lenders and each Affected Lender, and or, as to any of the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder advice satisfactory to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral that such Lender has executed this Amendment and (y) for the ratable account of the Lenders, 1/10% of the sum of the Term A Advances, the Term B Advances, the Acquisition Commitments and the Working Capital Commitments as such Advances and Commitments shall be outstanding immediately prior to the extent required under effectiveness of this Amendment (i.e. $260,000). The effectiveness of this Amendment is conditioned upon the Security accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement,.
(ivb) a certificate This Amendment shall be null and void and of no effect if, on or before April 23, 1997 (or such later date before July 15, 1997 as the Affected Lenders may consent to in writing), the following conditions shall not have been satisfied:
(1) The Administrative Agent shall not have additionally received all of the secretaryfollowing documents, assistant secretary or other Responsible Officer each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified) and in sufficient copies for each New Borrower certifying as Lender, in form and substance satisfactory to the incumbency and genuineness Administrative Agent (unless otherwise specified):
(i) Certified copies of (x) the resolutions of the signature Board of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy Directors of (A) the articles of incorporation Borrower approving this Amendment, the Collateral Documents, amendments or comparable organizational documents of such New Borrower supplements thereto contemplated hereby and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, matters contemplated hereby and thereby and (B) each other Loan Party evidencing approval of the bylaws Consent, the Collateral Documents, amendments or comparable organizational supplements thereto contemplated hereby and the matters contemplated hereby and thereby and (y) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent, the Collateral Documents, amendments or supplements thereto contemplated hereby and the matters contemplated hereby and thereby;
(ii) A certificate of the Secretary or an Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such New Borrower as in effect on other Loan Party authorized to sign this Amendment, the date Consent, the Collateral Documents, amendments or supplements thereto contemplated hereby to any of such certifications, (C) resolutions duly adopted by the board of directors which they are or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment are to be a party and the other Loan Documents documents to which it is a party, be delivered hereunder and thereunder;
(Diii) certificates as Counterparts of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement consent with respect to this Amendment No. 1, in form satisfactory to the New BorrowersAdministrative Agent, together with loss payable and lender endorsements in favor executed by each of the Administrative Agent with respect to all insurance policies covering CollateralLoan Parties (other than the Borrower);
(viiv) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an A favorable opinion of T▇Drinker, ▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel for the Loan Parties, as to such matters as the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this AmendmentAdministrative Agent may reasonably request;
(bv) the Lenders shall have received at least five Business Days in advance A certificate signed by a duly authorized officer of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists stating that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.:
Appears in 2 contracts
Sources: Credit Agreement (Mediq Inc), Credit Agreement (Mediq Inc)
Conditions of Effectiveness. The This Amendment (including, without limitation, the amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, 1 hereof) is subject to the satisfaction (or waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) the Administrative Agent shall have received counterparts of this Amendment duly executed by (i) each of Loan Party, (ii) the following, in form Consenting Revolving Lenders and substance reasonably satisfactory to (iii) the Administrative Agent:;
(ib) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect (or its Lien on any Collateral to the extent required under the Security Agreement,
(ivcounsel) shall have received a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an legal opinion of Tfrom H▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true Loan Parties, in form and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect substance reasonably satisfactory to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerConsenting Revolving Lenders;
(c) the Administrative Agent shall have received payment or evidence certificates of payment by good standing from the Borrowers secretary of state of the costs and expenses referred in Section 12.3 state of the Credit Agreement, organization of each Loan Party (to the extent invoiced such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certifying true and complete copies of the Organizational Documents attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party on or prior to the date hereofSecond Amendment Effective Date;
(d) no Default all expenses incurred by (i) the Revolving Lenders (including reasonable and documented fees and out-of-pocket expenses of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP), (ii) the Administrative Agent (including reasonable and documented fees and out-of-pocket expenses of ArentFox Schiff LLP), in the case of clauses (i) and (ii) hereof, in connection with the execution and delivery of this Amendment, and (iii) the Revolving Lenders (including reasonable and documented fees and out-of-pocket expenses of legal counsel other than L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP) in connection with the Specified Default) First Amendment not otherwise reimbursed prior to the Second Amendment Effective Date, in an aggregate amount not to exceed $50,000, shall have occurred and been paid in full in cash or will be continuing, and since paid in full in cash substantially concurrently with the effective date occurrence of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andSecond Amendment Effective Date;
(e) Holdings shall have entered into that certain Agreement and Plan of Merger entered into by and among Bandit Parent, LP, a Delaware limited partnership and Bandit Merger Sub, Inc., a Delaware corporation (the “Merger Agreement”);
(f) the representations and warranties set forth of the Borrower contained in Section 7 hereof Article V of the Existing SP Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of the Second Amendment Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(g) no Default or Event of Default shall have occurred and be continuing as of the date hereofSecond Amendment Effective Date or would result after giving effect to this Amendment; and
(h) the Administrative Agent shall have received certificate of a Responsible Officer of the Borrower certifying that the conditions set forth in Section 2(f) and Section 2(g) hereof have been satisfied.
Appears in 2 contracts
Sources: Super Priority Credit Agreement (WideOpenWest, Inc.), Super Priority Credit Agreement (WideOpenWest, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Agreement is subject to the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart executed counterparts of this Amendment Agreement executed by the Borrowers, the Administrative Agent, each Lender and the Lenders,each Loan Party;
(ii) amended and restated Notes, each Note executed by the Borrowers,Borrowers in favor of each Lender requesting a Note or Notes;
(iii) a joinder to the Security Agreement, Agreement executed by each Loan Party;
(iv) the Term Loan Intercreditor Agreement executed by the New Borrowers, together with Borrowers and the Term Loan Agent;
(v) the Fee Letter executed by the Company and the Administrative Agent;
(vi) such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may request to perfect its Lien on any Collateral to reasonably require evidencing the extent required under the Security Agreement,
(iv) a certificate of the secretaryidentity, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency authority and genuineness of the signature capacity of each officer of such New Borrower each Loan Party or Restricted Subsidiary executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation each Loan Party or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it Restricted Subsidiary is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party 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 do so would not reasonably be expected to have a Material Adverse Effect;
(viii) the executed opinion of THunton & ▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the Company and special New Borrowers,
(viii) a copy of York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Eligible Asset Lease Agreement for each Eligible Asset of Lender, in form and substance reasonably acceptable to the New Borrowers,Administrative Agent and Collateral Agent;
(ix) true (i) unaudited consolidated financial statements for the quarter ending September 30, 2016 prepared in accordance with GAAP and correct copies of all Material Contractual Obligations described (ii) financial projections (including the assumption on Schedule 3.7 hereto, andwhich such projections are based) for fiscal years 2017 through 2021;
(x) a duly completed Borrowing Base Reportcertificate signed by a Responsible Officer of the Company certifying that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, calculating and (B) that there has not occurred since December 31, 2016, any Material Adverse Effect;
(xi) a solvency certificate from the Borrowing Base chief financial officer of the Company in the form of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on the Effective Date a consolidated basis, are, and after giving effect to the joinder of the New Borrowers Transactions and the other transactions contemplated hereby, will be, Solvent
(xii) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by this Amendmentthe Security Agreements (other than Permitted Liens);
(xiii) the Collateral Questionnaire, executed by each Loan Party; and
(xiv) a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation.
(b) (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Fee Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders to the extent invoices have been received by the Company at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by the Company) shall have been paid.
(c) The Company and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d) The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 6.07.
(e) In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i) executed counterparts of the Security Agreement;
(ii) evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii) fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(f) There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in writing in any court or before any arbitrator or Governmental Authority that impairs the ability of the Loan Parties to consummate the Transactions and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.
(g) The Arrangers and the Agents shall have received at least five Business Days in advance of three business days prior to the Effective Closing Date (x) all documentation and other information that is required by the Arrangers’ and the Agents’ regulatory authorities with respect to the Company and the other Loan Parties under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under including without limitation the Beneficial Ownership RegulationPATRIOT Act, a Beneficial Ownership Certification in relation that has been requested by the Arrangers or the Agents at least ten Business Days prior to such New Borrower;the Closing Date.
(ch) On the Closing Date, neither the Company nor any of its Subsidiaries shall have any material Indebtedness other than Indebtedness permitted pursuant to Section 7.03.
(i) Since December 16, 2016, no Material Adverse Effect shall have occurred.
(j) The Administrative Agent shall have received payment any promissory note required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or evidence of payment accompanied by an executed transfer form in blank) by the pledgor thereof.
(k) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the costs and expenses referred in Section 12.3 of the Credit Agreementdate hereof, except to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the that such representations and warranties set forth specifically refer to an earlier date, in Section 7 hereof which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the date hereoftext thereof.
(l) No Default or Event of Default shall have occurred and be continuing, or would result, from any Credit Extension or from the application of the proceeds thereof on the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.01, 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 under any Loan Document to be consented to or approved by or acceptable or satisfactory to such Lender, unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 obligations of this Amendmentthe 2021 Incremental Term Lenders to make 2021 Incremental Term Loans under the Amended Credit Agreement, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, Incremental Amendments and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Required Lender Amendments shall be become effective as of the first date (the “First Amendment Effective Date”) on which the applicable conditions set forth below shall have been satisfied (or waived by the 2021 Incremental Term Lenders or the Required Lenders, subject to the satisfaction of the following conditions precedent:as applicable):
(a) the The Administrative Agent shall have received each counterparts of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the BorrowersBorrower, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any (x) in the case of the Property Incremental Amendments, the 2021 Incremental Term Lenders and (y) in the case of the New Borrower other than Permitted Liens,Required Lender Amendments, the Required Lenders (after giving effect to the 2021 Incremental Term Loans), and (ii) the Guarantor Consent and Reaffirmation attached hereto (the “Guarantor Consent”) executed by each Guarantor;
(viib) an The Administrative Agent shall have received a customary legal opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇from Ropes & ▇▇▇▇ LLP, counsel to the New Borrowers,Loan Parties;
(viiic) a copy The Administrative Agent shall have received, with respect to each Loan Party, certificates of good standing from the secretary of state of the state of organization of each Eligible Asset Lease Agreement for Loan Party (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Eligible Asset Loan Party certifying true and complete copies of the New Borrowers,Organizational Documents attached thereto (or certifying that such Organizational Documents delivered pursuant to Section 4.01(1)(d) of the Credit Agreement on the Closing Date have not been amended, restated, modified or otherwise supplemented) and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Guarantor Consent;
(ixd) true The Administrative Agent shall have received a certificate of a Responsible Officer certifying that (i) the conditions in clauses (f) and correct copies (g) of all Material Contractual Obligations described this Section 5 have been satisfied, and (ii) the First Lien Net Leverage Ratio for the Test Period most recently ended, calculated on Schedule 3.7 heretoa pro forma basis in accordance with Section 2.14 of the Credit Agreement (including, and
(xfor the avoidance of doubt, giving effect to the second proviso at the end of Section 2.14(4) a duly completed Borrowing Base Report, calculating of the Borrowing Base on the Effective Date Credit Agreement) after giving effect to the joinder incurrence of the New Borrowers and 2021 Incremental Term Loans on the other transactions contemplated by this AmendmentFirst Amendment Effective Date, does not exceed 4.75 to 1.00;
(be) the Lenders The Administrative Agent shall have received at least five Business Days in advance a solvency certificate from a Financial Officer of Holdings (after giving effect to the Transactions) based on and consistent with the form attached to the Credit Agreement as Exhibit I;
(f) The representations and warranties of the Effective Date (x) Borrower contained in Section 6, in Article V of the Credit Agreement or any other Loan Document shall be true and correct in all documentation material respects on and other information as of the date hereof after giving effect to the Transactions; provided, that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is required by regulatory authorities under Antiqualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(g) Immediately after giving effect to this Amendment, no Event of Default shall exist after giving effect to the making of the 2021 Incremental Term Loans;
(h) The Administrative Agent shall have received a Committed Loan Notice no later than 1:00 p.m., New York time, one (1) Business Day prior to the First Amendment Effective Date;
(i) The Borrower shall have paid all reasonable and documented out-Money Laundering Laws, of-pocket expenses of the Administrative Agent (including, without limitation, the PATRIOT Act Attorney Costs of the Administrative Agent to the extent provided for in Section 10.04 of the Credit Agreement) incurred in connection with this Amendment and any invoiced pursuant to a detailed line item invoice at least three (3) Business Days (unless otherwise agreed by the Borrower) prior to the First Amendment Effective Date;
(j) The Borrower shall have paid all fees required to be paid pursuant to the engagement letter, dated as of February 3, 2021, by and among the Borrower and the Amendment No. 1 Arrangers;
(k) The Administrative Agent and the 2021 Incremental Term Lenders shall have received (i) at least one (1) Business Day prior to the First Amendment Effective Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulationsregulations (including the USA PATRIOT Act) that has been reasonably requested in writing at least five (5) Business Days prior to the First Amendment Effective Date, and (yii) if any New the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certificate regarding beneficial ownership required by the Beneficial Ownership Certification Regulation (the “Beneficial Ownership Certificate”) in relation to the Borrower to the extent requested by such New BorrowerPerson in writing at least five (5) Business Days prior to the First Amendment Effective Date;
(cl) Substantially concurrently with the effectiveness of this Amendment on the First Amendment Effective Date, all accrued and unpaid interest on all Term Loans outstanding immediately prior to the First Amendment Effective Date to, but not including, the First Amendment Effective Date, shall have been paid to the Administrative Agent for the benefit of the Lenders; and
(m) The Administrative Agent shall have received payment or evidence evidence, including recent UCC, tax and judgment lien searches from the jurisdiction of payment by the Borrowers formation and jurisdiction of the costs and expenses referred in Section 12.3 chief executive office of each Loan Party, that none of the Credit Agreement, Collateral is subject to the extent invoiced on or prior to the date hereof;
(d) no Default any Liens (other than the Specified Default) shall have occurred and be continuing, and since the effective date Liens permitted under Section 7.01 of the most recent financial statements delivered Amended Credit Agreement). For purposes of determining compliance with the conditions specified in this Section 5, the Lenders party hereto shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to such Lenders from and after the making by the 2021 Incremental Term Lenders of the 2021 Incremental Term Loans pursuant to Section 7.1(a2.01(1)(b) of the Amended Credit Agreement, no event or circumstance exists that, either individually or in Agreement and the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as effectiveness of the date hereofRequired Lender Amendments.
Appears in 2 contracts
Sources: Credit Agreement (Ensemble Health Partners, Inc.), Credit Agreement (Thor Holdco Corp.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be effective as of the Effective DateDecember 7, subject to the satisfaction 1999, so long as each of the following conditions precedentprecedent shall have been satisfied:
(a) the Administrative Agent shall have received each receive counterparts of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment and (ii) the Waiver and Fifth Amendment to Term Credit Agreement, each executed by the Borrowers, Required Lenders (as defined in the Administrative Agent, Intercreditor Agreement) and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date acknowledged by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this AmendmentGuarantor;
(b) the Lenders Administrative Agent shall have received at least five Business Days in advance receive counterparts of the Effective Date (x) all documentation and other information that is required First Amendment to Intercreditor Agreement, executed by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerRequired Lenders;
(c) the Administrative Agent shall have received payment or evidence receive counterparts of payment the Third Amendment to Promissory Note, executed by the Borrowers Borrower and Bank of America, N.A., extending the maturity of the costs and expenses referred in Section 12.3 Overline Facility to the end of the Credit Agreement, to the extent invoiced on or prior to the date hereofWaiver Period;
(d) no Default the Administrative Agent shall receive a certified list of all real property owned by the Borrower and its Subsidiaries (other than any non-essential asset with a fair market value not exceeding $200,000) that is known to the Specified DefaultBorrower on the date hereof to be either (i) shall have occurred and unencumbered or (ii) subject to a lien, the terms of which would not be continuing, and since violated by the effective date granting of a second lien without the prior written consent of the most recent financial statements delivered pursuant to Section 7.1(aholder or holders (or the trustee or agent of such holder or holders) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andfirst lien;
(e) the representations and warranties set forth in Section 7 hereof 11 of this Amendment shall be true and correct correct;
(f) all reasonable out-of-pocket fees and expenses in all material respects as connection with the Loan Documents, including this Amendment and the Additional Security Documents, including legal and other professional fees and expenses incurred on or prior to the date of this Amendment by Administrative Agent or any Lender, including, without limitation, the reasonable fees and expenses of Winstead ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and PricewaterhouseCoopers, shall have been paid;
(g) retainers in the amount of $50,000 for Winstead ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C. and $50,000 for PricewaterhouseCoopers shall have been paid;
(h) the Administrative Agent shall receive the consolidated balance sheets of the date hereofBorrower and its Subsidiaries for the month of October 1999; and
(i) the Administrative Agent shall receive, in form and substance satisfactory to the Administrative Agent and its counsel, such other documents, certificates and instruments as the Administrative Agent shall reasonably require.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Pillowtex Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Fifth Amendment shall not be effective as of until the Effective Date, subject to the satisfaction date each of the following conditions precedentprecedent has been satisfied:
(a) the Administrative Agent shall have has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the followingCredit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ PFargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLPL.L.P., counsel to the New Borrowers,
Loan Parties and (viiiii) a copy of local counsel in each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect jurisdiction applicable to the joinder of the New Borrowers and the other transactions contemplated by this AmendmentFifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (xe) all documentation governmental and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitationthird party consents to the transactions contemplated hereby, the PATRIOT Act and any applicable “know your customer” rules and regulationsobtaining of which is a condition to the MLP’s, and (y) if any New Borrower qualifies as a “legal entity customer” the Borrower’s or their affiliates’ funding obligations under the Beneficial Ownership RegulationCredit Agreement, a Beneficial Ownership Certification have been obtained and shall be in relation to such New Borrowerfull force and effect;
(cf) the Administrative Agent shall have has received payment or evidence of payment a certificate signed by the Borrowers a Responsible Officer of the costs Borrower certifying that (i) the representations and expenses referred warranties contained in Section 12.3 Article V of the Credit AgreementAgreement are true and correct in all material respects on and as of such date (unless such representations and warranties specifically refer to an earlier date, to the extent invoiced on or prior to the date hereof;
in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (dii) no Default (other than the Specified Default) shall have or Event of Default has occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of is continuing under the Credit AgreementAgreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance exists that, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(ej) the representations and warranties Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 7 hereof 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be true conclusive and correct in all material respects as of the date hereofbinding.
Appears in 2 contracts
Sources: Credit Agreement (Martin Midstream Partners Lp), Credit Agreement
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the first date (such date being referred to as the “Amendment No. 2 Effective Date”, subject to the satisfaction which date is April 4, 2014) when each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the MLP, (D) the Cashless Option Lenders, (E) the Additional Term B-3 Lender, (F) Consenting Lenders constituting the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Notice of Borrowing in accordance with the requirements of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Credit Parties, dated as of the Amendment No. 2 Effective Date and addressed to the Administrative Agent and each of the followingLenders, in form and substance reasonably satisfactory to the Administrative Agent:.
(id) a counterpart The Administrative Agent shall have received such (x) certificates of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
good standing (ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreementextent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Credit Party as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to perfect its Lien on any Collateral to the extent required under the Security Agreement,
act as a Responsible Officer in connection with this Amendment and (ivy) a certificate certificate, dated as of the secretaryAmendment No. 2 Effective Date, assistant secretary or other signed by a Responsible Officer of each New Borrower certifying as to the incumbency and genuineness Borrower, confirming satisfaction of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (Aconditions set forth in Sections 4(f) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,g).
(ve) copies Payment of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable reasonable fees and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable expenses due to the Administrative Agent and reflecting no Liens against any of the Property of Arranger (as agreed to in writing between the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to Administrative Agent and/or the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers Arranger and the other transactions contemplated by this Amendment;
(b) Borrower). Substantially simultaneous with effectiveness, the Lenders (including all Cashless Option Lenders but excluding the Additional Term B-3 Lender in its capacity as such) under the existing Credit Agreement shall have received at least five Business Days in advance of the Effective Date been paid (x) all documentation accrued principal (other than the principal amount of Converted Term B Loans) and other information that is required by regulatory authorities under Anti-Money Laundering Lawsinterest on their Term B-2 Loans to, but not including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, Amendment No. 2 Effective Date and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered prepayment premium pursuant to Section 7.1(a5.01(b) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and.
(ef) the The representations and warranties set forth of the Borrower and each other Credit Party contained in Section 7 hereof 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date hereofAmendment No. 2 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(g) No Default or Event of Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by Borrower for each Lender that requests such a Note reasonably in advance of the Amendment No. 2
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP)
Conditions of Effectiveness. The effectiveness of this Amendment (including the amendments set forth contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, 1 and the limited waiver set forth agreements contained in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, 2) are subject to the satisfaction (or waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) this Amendment shall have been duly executed by the Borrower and the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Administrative Agent, and the Administrative Agent shall have received Lender Consents from Lenders holding more than 50% of the sum of the (x) Total Outstandings immediately prior to the First Amendment Effective Date and (y) aggregate unused Revolving Credit Commitments immediately prior to the First Amendment Effective Date;
(b) the Administrative Agent shall have received each received:
(i) a certificate signed by a Responsible Officer of the followingBorrower, in form and substance reasonably satisfactory to the Administrative Agent:
, certifying (iA) a counterpart as to the satisfaction of the conditions set forth in paragraphs (c) and (d) of this Amendment executed by Section 3 and (B)(I) each of the Borrowerscertificate of formation and the limited liability company agreement of the Borrower either (x) has not been amended since the Closing Date or (y) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (II)(x) the written consents of the Borrower’s governing body authorizing the execution, delivery, performance of, and amendments to, the Administrative AgentCredit Agreement have not been modified, rescinded or amended since the Closing Date and are in full force and effect on the First Amendment Effective Date without amendment, modification or rescission, and the Lenders,
(iiIII) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer the officers or other authorized signatories of such New Borrower the Borrower, executing the Loan Documents to which it is this Amendment;
(ii) a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates certificate as of a recent date of the good standing or active status, as applicable, of such New the Borrower under the laws of its jurisdiction of organization from the relevant authority of its jurisdiction of organization,; and
(viii) copies of insurance certificates describing all insurance policies required documentation and other information from each Loan Party reasonably requested by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results on behalf of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be any Lender as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(viiFirst Amendment Effective Date) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received in writing at least five three Business Days in advance of the First Amendment Effective Date (x) all Date, which documentation and or other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under including the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerUSA PATRIOT Act;
(c) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(d) the representations and warranties of the Borrower set forth in Section 4 of this Amendment are true and correct;
(e) all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section 11.04 of the Credit Agreement), any arranger pursuant to any written agreement with the Borrower and the Lenders on or before the First Amendment Effective Date shall have been paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the First Amendment Effective Date);
(f) The Replacement Lender shall have executed and delivered the Master Assignment contemplated by Section 2 above and all conditions to the consummation of the assignments in accordance with Section 2 above shall have been satisfied and such assignments shall have been consummated;
(g) The Borrower shall have, substantially concurrently with the effectiveness of this Amendment, paid to each Non-Continuing Term B Lender and each Non-Consenting Term B Lender all accrued and unpaid interest and fees and other amounts payable to such Lender under any Loan Document with respect to the Term B Loans assigned by such Lender under Section 2 above (other than principal paid to such Lender under Section 2 above), if any, then due and owing to such Lender under the Credit Agreement and the other Loan Documents (immediately prior to the effectiveness of this Amendment); and
(h) the Administrative Agent shall have received payment from or evidence of payment by the Borrowers on behalf of the costs Borrower for the account of each Continuing Lender and expenses referred the Replacement Lender, of a consent fee for each such Lender in Section 12.3 an amount equal to 0.25% of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date aggregate principal amount of the most recent financial statements delivered pursuant to Section 7.1(a) Term B Loans of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects such Lender as of the date hereofFirst Amendment Effective Date.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Black Knight Financial Services, Inc.), Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Conditions of Effectiveness. The effectiveness of this Second Amendment (including the amendments set forth contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, 1 hereof) are subject to the satisfaction of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) the Administrative Agent this Second Amendment shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment been duly executed by the Borrowers, Holdings, each other Guarantor, the Lenders constituting the Required Lenders (calculated immediately prior to the making of the Second Amendment Prepayment described below) and the Administrative Agent (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) (i) prior to the Lenders Second Amendment Effective Date the Borrowers shall have received at least five Business Days made a Discounted Prepayment Offer to prepay (the “Second Amendment Prepayment Offer” and the principal amount of such Second Amendment Prepayment Offer being the “Second Amendment Prepayment Offer Amount”) Term Loans in advance an aggregate principal amount of not less than $60,000,000 in connection with the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification effectiveness of this Second Amendment in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in accordance with Section 12.3 2.22 of the Credit AgreementAgreement (as amended hereby), together with a premium equal to 1.00% of the extent invoiced aggregate principal amount of Terms Loan so prepaid (the “Second Amendment Prepayment Premium”), and shall have specified a settlement date for such Second Amendment Prepayment Offer of not later than the Second Amendment Effective Date and (ii) on or prior to the date hereof;
(d) no Default (other than Second Amendment Effective Date, the Specified Default) Borrowers shall have occurred and be continuing, and since settled the effective date of the most recent financial statements delivered pursuant to Second Amendment Prepayment Offer in accordance with Section 7.1(a) 2.22 of the Credit AgreementAgreement (as amended hereby) and prepaid (or shall prepay substantially concurrently with the effectiveness of this Second Amendment) at an amount not less than the principal amount of Term Loans of all Lenders accepting such Second Amendment Prepayment Offer in an aggregate principal amount not exceeding the Second Amendment Prepayment Offer Amount (such settlement and prepayment, no event or circumstance exists thatthe “Second Amendment Prepayment”), either individually or in the aggregateSecond Amendment Prepayment Premium on such prepaid Term Loans and all accrued and unpaid interest, has had or could reasonably if any, on such prepaid Term Loans up to the settlement date of such prepayment, which Second Amendment Prepayment and the payment of such Second Amendment Prepayment Premium and of accrued and unpaid interest relating thereto may be expected to have a Material Adverse Effect; and
(e) funded with the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as cash proceeds of the date hereof.Permitted Holdings Unsecured Second Amendment Debt;
Appears in 2 contracts
Sources: Credit Agreement (International Seaways, Inc.), Credit Agreement (International Seaways, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Agreement shall be become effective as of the first date (the “Third Amendment Effective Date, subject to the satisfaction ”) that all of the following conditions precedentprecedent shall have been satisfied:
(a) the 2.1 The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified and each in form and substance reasonably satisfactory to the Administrative Agent:
(ia) a counterpart counterparts of this Amendment executed Agreement, in such number as requested by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, duly executed by the Borrowers,Borrower, the Guarantors, the Administrative Agent and Lenders constituting Required Lenders.
(iiib) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to require evidencing the extent required under the Security Agreement,
(iv) a certificate identity, authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying thereof authorized to act as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority Responsible Officer in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment Agreement and the other Loan Documents to which it such Loan Party is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence a certificate of payment by the Borrowers a Responsible Officer of the costs and expenses referred in Section 12.3 of the Credit Agreement, Borrower to the extent invoiced on or prior to effect that (i) the date hereofconditions specified in Sections 2.2 and 2.3 have been satisfied and (ii) no event has occurred and is continuing which constitutes a Default;
(d) no Default a fully executed copy of an amendment to the Intercreditor Agreement;
(e) a fully executed copy of an amendment, in each case dated as of (or prior to) the Third Amendment Effective Date, to each of the following (each as defined in the Intercreditor Agreement):
(i) the Regions Term Loan Agreement;
(ii) the Huntington Term Loan Agreement;
(iii) the PNC Term Loan Agreement; and
(iv) the Prudential Note Agreement; and
(f) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
2.2 The representations and warranties contained in Section 3 are correct on and as of the Third Amendment Effective Date, as though made on and as of such date other than the Specified Default) any such representations or warranties that, by their terms, refer to another date, in which case such representations and warranties shall have been correct as of such other date.
2.3 There shall not have occurred and be continuingsince December 31, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement2017, no any event or circumstance exists thatcircumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; andEffect (excluding any event or circumstance resulting from the COVID-19 pandemic to the extent such event or circumstance has been publicly disclosed by the Borrower in its securities filings or disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the Third
(e) 2.4 The Administrative Agent and each Lender shall have received all documentation and other information that the representations Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and warranties set forth anti-money laundering rules and regulations, including the U.S. Patriot Act, and the Beneficial Ownership Regulation, in Section 7 hereof each case, to the extent requested at least five Business Days prior to the Third Amendment Effective Date.
2.5 Any fees owed to any Lender or Arranger required to be paid on or before the Third Amendment Effective Date shall be true and correct in all material respects as of the date hereofhave been paid.
Appears in 2 contracts
Sources: Credit Agreement (Apple Hospitality REIT, Inc.), Credit Agreement (Apple Hospitality REIT, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Amendment is subject to the satisfaction of the following conditions precedentprecedent that:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart signature pages of this Amendment duly executed by the Borrowers, each of the Lenders required pursuant to Section 12.07 of the Credit Agreement, the Swingline Lender, each Issuing Bank and the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders Administrative Agent shall have received at least five Business Days in advance counterparts of the Effective Date Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Guarantors (x) all documentation the “Consent and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerReaffirmation”);
(c) the Administrative Agent shall have received payment or evidence (i) counterparts of payment the Joinder Agreement attached as Exhibit B hereto duly executed by the Borrowers of existing Borrowers, GGP Cumulus, GGP Nimbus and the costs Administrative Agent (the “Joinder”) and expenses referred (ii) a joinder to the Guaranty in Section 12.3 the form attached thereto duly executed by GGP LLC (the “Guaranty Joinder”);
(d) the Administrative Agent shall have received the instruments, certificates and documents set forth in Sections 5.01(v) through (x) and (xvii) of the Credit AgreementAgreement in respect of GGP Cumulus and GGP Nimbus, each in its capacity as a Borrower, and in respect of GGP LLC, in its capacity as a Guarantor, in each case dated as of the date of this Amendment, all in form and substance reasonably acceptable to the Administrative Agent;
(e) to the extent invoiced any Note shall have been issued to any Lender on or prior to the date hereof;
of this Amendment, replacement Notes executed by the Borrowers (dincluding GGP Cumulus and GGP Nimbus); provided, however, that (i) no Default such replacement Notes shall not be required unless and until such time as the relevant Lender has returned its original Note to the Administrative Agent (other than or its counsel) for concurrent cancellation with the Specified Default) issuance of such replacement Note (and the Partnership shall have occurred received confirmation thereof) and be continuing, and since (ii) to the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreementextent such Notes have not been returned as described in clause (i), no event or circumstance exists that, either individually or in such replacement Notes shall constitute a condition to the aggregate, has had or could reasonably be expected to have a Material Adverse Effecteffectiveness of this Amendment; and
(ef) the representations and warranties set forth in Section 7 hereof Administrative Agent shall be true and correct in all material respects as have received payment and/or reimbursement of the Administrative Agent’s and its affiliates actual reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced prior to the date hereofof this Amendment, the actual reasonable and documented out-of-pocket fees and expenses of one counsel for the Administrative Agent, the Issuing Banks and the Lenders, taken as a whole (and, if necessary, one local counsel in any relevant material jurisdiction to such Persons, taken as a whole)) in connection with this Amendment and the other Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (General Growth Properties, Inc.), Credit Agreement (General Growth Properties, Inc.)
Conditions of Effectiveness. The amendments set forth This Amendment shall become effective on the Business Day (the “Third Amendment Effective Date”) on which (x) Lender has delivered an executed counterpart of this Amendment to Borrower, (y) Lender has received all of the following documents and payments:
(i) two copies of this Amendment executed by Borrower;
(ii) two copies of a Joinder and Confirmation of Guarantor Documents executed by the Guarantors and Psyop Holdings (the “Confirmation”);
(iii) two copies of a Subordination Agreement in Section 2 the form of Exhibit A hereto, executed by Borrower and Seller (the “Subordination Agreement”);
(iv) two copies of a Pledge Amendment executed by Borrower (the “Pledge Amendment”);
(v) two copies of an Acknowledgment of Pledge executed by Psyop Holdings (the “Pledge Acknowledgment”);
(vi) a certificate of the Secretary of Borrower, which shall certify (a) resolutions of the managers of Borrower evidencing approval of this Amendment, the joinder Subordination Agreement and the Pledge Amendment (the “Borrower Documents”) and authorizing the execution and delivery of the New Borrowers pursuant to Section 3 of this Amendment, same; (b) the names and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as true signatures of the Effective Date, subject officers of Borrower authorized to sign the Borrower Documents; and (c) that there has been no change to the satisfaction Organizational Documents of Borrower since December 10, 2016;
(vii) a certificate of the following conditions precedent:
Secretary of each Guarantor, which shall certify (a) the Administrative Agent shall have received each resolutions of the followingmanagers of each Guarantor evidencing approval of the Confirmation and authorizing the execution and delivery of the same; (b) the names and true signatures of the officers of such Guarantor authorized to sign the Confirmation; and (c) that there has been no change to the Organizational Documents of such Guarantor since December 10, 2016;
(viii) a certificate of a Director of Psyop UK, which shall certify (a) resolutions of the governing body of Psyop UK evidencing approval of the Loan Note Instrument and authorizing the execution and delivery of the same; (b) the names and true signatures of the officers of Psyop UK authorized to sign the Loan Note Instrument; and (c) true, correct and complete copies of the Organizational Documents of Psyop UK;
(ix) a certificate of the Secretary of Psyop Holdings, which shall certify (a) resolutions of the board of directors of Psyop Holdings evidencing approval of the Confirmation and the Pledge Acknowledgment and authorizing the execution and delivery of the same; (b) the names and true signatures of the officers of Psyop Holdings authorized to sign the Confirmation and the Pledge Acknowledgment; and (c) true, correct and complete copies of the Organizational Documents of Psyop Holdings;
(x) the certificate(s) evidencing all of the capital stock in Psyop Holdings owned by Borrower together with an undated stock power, duly executed in blank and in form and substance reasonably satisfactory to the Administrative Agent:Lender; and
(ixi) a counterpart payment from Borrower of this Amendment executed all costs and expenses incurred by Lender in connection with the Borrowersdrafting, the Administrative Agentnegotiation, execution and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance implementation of this Amendment and the other Loan Documents documents referred to which it is a party, herein. If and (D) certificates as to the extent Lender has not received at least the requisite number of a recent date originals of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
documents set forth in clauses (vi) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
through (ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base above on the Third Amendment Effective Date after giving effect Date, Borrower shall cause such originals to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five be delivered to Lender or its counsel within three Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofthereafter.
Appears in 2 contracts
Conditions of Effectiveness. The effectiveness of this First Amendment (including the amendments set forth contained in Section 1 hereof and agreements contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, hereof) are subject to the satisfaction of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) this First Amendment shall have been duly executed by the Administrative Borrower, each Guarantor, the Lenders, the Incremental Lenders, the Facility Agent and the Security Trustee (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Facility Agent;
(b) a duly executed original of a Guarantor Accession Agreement made among the Additional Guarantors and the Facility Agent;
(c) the Facility Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart certificate of this Amendment executed by an officer or an officer of the Borrowerssole member, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent case may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretarybe, assistant secretary or other Responsible Officer of each New Borrower Security Party dated the First Amendment Effective Date, certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying (A) either (i) that attached thereto is a true, correct true and complete copy of (A) the articles of incorporation or comparable organizational documents each Organizational Document of such New Borrower Security Party, or (ii) that the copies of such Security Party’s Organizational Documents as previously certified and all amendments theretodelivered to the Facility Agent on the Closing Date (or, certified if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the First Amendment Effective Date, without modification or amendment since such prior date of a recent date by the appropriate Governmental Authority in its jurisdiction of formationcertification and delivery, (B) the bylaws or comparable organizational documents that attached thereto is a true and complete copy of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board Board of directors Directors or comparable governing body sole member of such New Borrower Security Party authorizing the execution, delivery and performance of this First Amendment and the other Loan Documents (including, if applicable, as amended by this First Amendment) to which it such Security Party is a partyparty and, in the case of the Borrower, the borrowing of the Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (DC) certificates as to the incumbency and specimen signature of each officer, director and attorney-in-fact authorized to execute this First Amendment and any Loan Document or any other document delivered in connection herewith or therewith on behalf of such Security Party, (ii) a certificate as to the goodstanding of each Security Party as of a recent date of reasonably near to the good standing or active status, as applicable, of such New Borrower First Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of its jurisdiction of organization,
incorporation and (viii) copies an original or certified copy power of insurance certificates describing all insurance policies required by Section 7.6 attorney under which any Loan Document is executed on behalf of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collaterala Security Party;
(vid) the results Facility Agent shall have received copies of UCC Lien searches showing all financing statements and other documents consents which a Security Party requires to enter into, or instruments on file against make any payment under, any Loan Document, each New Borrower in the appropriate filing offices, such searches to be certified as of a date acceptable to reasonably near the Administrative Agent and reflecting no Liens against any First Amendment Effective Date by an authorized person of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) such party as being a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretocopy thereof, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated or certification by this Amendmentsuch authorized person that no such consents are required;
(be) the Lenders Facility Agent shall have received at least five Business Days in advance of the Effective Date (x) all such documentation and other information that evidence as is required reasonably requested by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act Facility Agent or a Lender in order for each to carry out and any applicable be satisfied with the results of all necessary “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification or other checks which it is required to carry out in relation to such New Borrowerthe transactions contemplated by this Agreement and the other Loan Documents, including without limitation obtaining, verifying and recording certain information and documentation that will allow the Facility Agent and each of the Lenders to identify each Security Party in accordance with the requirements of the PATRIOT Act;
(cf) two valuations, each dated no more than thirty (30) days prior to the First Amendment Effective Date, addressed to the Facility Agent (at the expense of the Borrower) by an Approved Broker indicating the Fair Market Value of each of the Delivered Vessels, and each of the Additional Young Vessels to be financed by the Incremental Commitment;
(g) the Administrative Facility Agent shall have received payment in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this First Amendment, and evidence that such amendment has been duly recorded in accordance with the Laws of the Approved Flag;
(h) a copy of the memorandum of agreement (together with all amendments and addenda thereto) for each Additional Young Vessel duly executed by the relevant Additional Guarantor who will be the owner thereof, and the relevant seller, together with evidence of any address or similar commission arrangements, all of which shall be of terms acceptable to the Facility Agent (certified by an officer of the Borrower or such Additional Guarantor to be a true, correct and complete copy thereof);
(i) evidence that each Additional Guarantor who will be the owner of an Additional Young Vessel has duly opened an Operating Account and has delivered to the Facility Agent all resolutions, signature cards and other documents or evidence required in connection with the opening, maintenance and operation of payment by such accounts with the Borrowers Account Bank;
(j) a duly executed original of the costs and expenses referred in Section 12.3 of the Credit Agreement, (i) an amendment to the extent invoiced Membership Interest Pledge and (ii) an Account Pledge with respect to each Additional Guarantor who will be the owner of an Additional Young Vessel, and of any documents required to be delivered thereunder;
(k) on or prior to the date hereofFirst Amendment Effective Date, the Borrower shall have paid to the Facility Agent for the account of each Incremental Lender with First Incremental Commitments a fee equal to 1% of the aggregate amount of such Incremental Lender’s Commitments in effect on the First Amendment Effective Date;
(dl) no Default (other than the Specified Default) Borrower shall have occurred paid all costs, fees, expenses and be continuing, other amounts due and since the effective date of the most recent financial statements delivered payable pursuant to Section 7.1(athe Loan Documents and in connection with this First Amendment;
(m) of the Credit Agreement, no event or circumstance exists that, either individually or Facility Agent shall have received such legal opinions and other documents reasonably requested by the Facility Agent in the aggregate, has had or could reasonably be expected to have a Material Adverse Effectconnection with this First Amendment; and
(en) the (i) all representations and warranties set forth in Section 7 hereof 3 of this First Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the First Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date hereof(in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date) and (ii) no Default shall have occurred and be continuing or would occur after giving effect to the Incremental Commitments or to the incurrence of the Loans pursuant to this First Amendment and the application of the proceeds therefrom.
Appears in 1 contract
Conditions of Effectiveness. The amendments amendment and restatement of the Original IFC Loan Agreement set forth in Section 2 of this Amendment, Agreement shall become effective only upon the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction fulfillment of the following conditions precedent:(and prior to the fulfillment thereof, the Original IFC Loan Agreement as in existence prior to the amendment and restatement contemplated hereby shall remain in full force and effect):
(a) the Administrative Agent following agreements and amendments, each in form and substance satisfactory to IFC, have been entered into by all parties to them and have become (or, as the case may be, remain) unconditional and fully effective in accordance with their respective terms (except for this Agreement or any one of such documents having Amended and Restated Loan Agreement become unconditional and fully effective, if that is a condition of any of such documents, it being the intention of the parties that all of such documents shall have become effective simultaneously), and IFC has received a copy of each of those agreements to which it is not a party:
(i) the followingFinancial Support Agreement;
(ii) the FMO Loan Agreement;
(iii) the Sponsor Guarantee Agreement; and
(iv) an amendment to the Put Option Agreement, providing for the extension of the put period thereunder to December 31, 2012;
(b) IFC has received from the Borrower a prepayment of the A Loan in the amount of two hundred nineteen thousand one hundred sixty three and 64/100th Dollars ($219,163.64);
(c) IFC has received from the Borrower a prepayment of the B Loan in the amount of two hundred eight thousand seven hundred twenty-seven and 27/100th Dollars ($208,727.27);
(d) IFC has received a legal opinion from the Borrower's counsel in Mexico, in form and substance reasonably satisfactory to the Administrative Agent:
IFC, with regard to Mexican tax law as it relates to (i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, Merger and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,railroad diesel tax credit;
(iiie) IFC has received a joinder legal opinion from its special counsel in New York, New York, in form and substance satisfactory to IFC, with regard to the Security AgreementNew York law aspects of this Agreement and the other Transaction Documents referred to in subsection (a) above;
(f) IFC has received a legal opinion from the Borrower's counsel in Mexico, executed by the New Borrowersin form and substance satisfactory to IFC, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral regard to the extent required under the Security Agreement,
(iv) a certificate due organization, power and authority of the secretary, assistant secretary or Borrower and the Project Company to enter into this Agreement and the other Responsible Officer of each New Borrower certifying as Transaction Documents referred to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents in subsection (a) above to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of covering such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect matters relating to the New Borrowers, together with loss payable transactions contemplated hereby and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateralthereby as IFC may reasonably request;
(vig) IFC has received a legal opinion from the results of UCC Lien searches showing all financing statements Sponsor's general counsel, in form and substance satisfactory to IFC, with regard to the Sponsor's due organization, power and authority to enter into the Financial Support Agreement, the Sponsor Guarantee Agreement and the amendment to the Put Option Agreement and covering such other documents or instruments on file against each New Borrower in matters relating to the appropriate filing offices, such searches transactions contemplated hereby and thereby as IFC may reasonably request; Amended and Restated Loan Agreement
(h) IFC has received any fees under Section 3.08(b)(vi) (Fees) required to be as paid in connection with the execution of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease this Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendmenthereby;
(bi) IFC has received the Lenders shall reimbursement of all invoiced fees and expenses of IFC's counsel incurred in connection with the execution of this Agreement and the transactions contemplated hereby (as provided in Section 3.15(b)(ii)(H)(Expenses)), or confirmation that those fees and expenses have received at least five Business Days in advance of the Effective Date (x) all documentation and other information been paid directly to that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrowercounsel;
(cj) each Existing Deficiency Loan Agreement has been amended to provide for repayment of the relevant deficiency loan on the later of (i) the Administrative Agent shall have received payment or evidence repayment in full of payment by both the Borrowers of FMO Loan and the costs IFC Loan and expenses referred (ii) (in Section 12.3 of the Credit Agreementequal installments) on March 15, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred 2013 and be continuingSeptember 15, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect2013; and
(ek) the Borrower and the Project Company have certified to IFC, in the form of Schedule 2, that the representations and warranties set forth made in Section 7 Article IV hereof shall be are true and correct in all material respects as of the date hereofupon which all of the foregoing conditions have been satisfied.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, This Amendment shall become effective on the joinder of date hereof (the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section “Amendment No. 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to ”) upon the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received counterparts to this Amendment, duly executed by each of the followingBorrower, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the BorrowersExtending Lenders, the Administrative Agent, the Issuing Bank and the Lenders,Swingline Lender;
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 4 Effective Date) of (i) Sidley Austin LLP, counsel for the Loan Parties, and (ii) amended and restated Notesin-house legal counsel for the Loan Parties, executed by the Borrowers,
(iii) a joinder in each case, covering such matters relating to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer Loan Parties and this Amendment as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,shall reasonably request;
(ivc) The Administrative Agent shall have received certificates of the secretary or an assistant secretary of each Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of the secretarysuch Loan Party), assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness (i) specimen signatures of the signature of each officer of such New Borrower executing the persons authorized to execute Loan Documents to which it such Loan Party is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formationparty, (Bii) the bylaws or comparable organizational documents copies of such New Borrower as in effect on the date resolutions of such certifications, (C) resolutions duly adopted by the board of directors or comparable other appropriate governing body of such New Borrower Loan Party authorizing the execution, execution and delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(viii) copies of insurance certificates describing all insurance policies required by Section 7.6 of such Loan Party’s constituent organizational documents or a statement that such constituent organizational documents have not changed since the Credit Agreement with time each Loan Party last provided a certification in respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateralthereof;
(vid) The Administrative Agent shall have received, for each Loan Party (other than Western Cement Company of California), a certificate of good standing (or the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in equivalent) from the appropriate filing offices, governing agency of such searches to be as Loan Party’s jurisdiction of a date acceptable organization (to the Administrative Agent and reflecting no Liens against any extent the concept of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendmentgood standing is applicable in such jurisdiction);
(be) the Lenders The Administrative Agent shall have received received, at least five three Business Days in advance of prior to the Amendment No. 4 Effective Date (x) Date, all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, regarding the PATRIOT Act and any Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New including the Patriot Act, to the extent requested in writing of the Borrower qualifies as a “legal entity customer” under at least 10 Business Days prior to the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;Amendment No. 4 Effective Date; and
(cf) the The Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses referred of counsel for the Administrative Agent) in Section 12.3 of connection with this Amendment and any other Loan Document, and for which invoices have been presented at least one (1) Business Day prior to the Credit AgreementAmendment No. 4 Effective Date, in each case, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to payment is required by Section 7.1(a9.03(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Agreement is subject to the satisfaction of the following conditions precedent:precedent (the first date on which such condition precedents have been satisfied or waived being the “Effective Date”):
(a) the The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment Agreement, duly executed by the Borrowers, the Administrative Agent, each Credit Party and the Lenders,each Lender;
(ii) amended and restated Notes(x) a copy of the certificate of formation of the Borrower, executed certified by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments Secretary of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate State of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified Delaware as of a recent date by the appropriate Governmental Authority in its jurisdiction of formationdate, (By) a copy of the bylaws limited liability company agreement of the Borrower (or comparable organizational documents a certification that there have been no changes to the limited liability company agreement of such New the Borrower as in effect on previously delivered to the date of such certifications, Administrative Agent) and (Cz) resolutions duly adopted by of the board sole member of directors or comparable governing body of such New the Borrower authorizing the execution, delivery and performance of this Amendment Agreement, in each case, certified by a corporate secretary or assistant secretary of the Borrower and in form, scope and substance acceptable to the other Loan Documents Administrative Agent;
(iii) a written opinion of Borrower’s counsel, in form, scope and substance acceptable to which it is the Administrative Agent;
(iv) payment in full, in immediately available funds, to the Administrative Agent of an amendment fee for the account of each Lender that executes and delivers a partycounterpart to this Agreement on or prior to April 3, 2013, in an amount equal to 0.10% of the sum of (x) such Lender’s Revolving Commitment and (Dy) certificates outstanding principal balance of Term Loans (excluding any Incremental Term Loans) owing to such Lender as of a recent date the Effective Date, which fee the Borrower hereby agrees to pay concurrently with its execution and delivery of the good standing or active status, as applicable, of this Agreement and agrees and acknowledges that such New Borrower under the laws of its jurisdiction of organization,fee is fully-earned and non-refundable;
(v) copies payment of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect fees due and payable to the New Borrowers, together with loss payable Administrative Agent under any Loan Document and lender endorsements under that certain fee letter duly executed and delivered by the Borrower on or prior to the date hereof in favor of the Administrative Agent with respect to all insurance policies covering Collateraland GE Capital Markets, Inc.;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of an Incremental Term Loan Assumption Agreement from each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base Incremental Term Loan Lender making Incremental Term Loans on the Effective Date after giving effect to the joinder of the New Borrowers Date, duly executed by such Incremental Term Loan Lender and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Amendment is subject to the satisfaction of the following conditions precedent:
precedent that (a) the Administrative Agent shall have received each (i) an agreement to support the Restructuring has been signed by the Company (on behalf of itself and all direct and indirect subsidiaries) and Lenders having Revolving Credit Exposures, outstanding principal amount of Term Loans and unused Commitments representing at least 90% of the followingsum of the total Revolving Credit Exposures, the aggregate principal amount of Term Loans and the unused Commitments, (ii) counterparts of this Amendment duly executed by the Borrowers, the Supermajority Lenders and the Administrative Agent, (iii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors, (iv) a duly executed amendment in respect of the Yellow Receivables Facility in form and substance reasonably satisfactory to the Administrative Agent:
Agent (iand the Required Lenders hereby consent to such Amendment) and such amendment shall be in full force and effect contemporaneously with this Amendment, (v) a counterpart duly executed amendment in respect of this Amendment executed by the Borrowers, the Administrative Agent, Specified Pension Fund Deferral Transaction Documents in form and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder substance reasonably satisfactory to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent and such amendment shall be in full force and effect contemporaneously with this Amendment, (vi) evidence reasonably satisfactory to the Administrative Agent that the Teamsters National Freight Industry Negotiating Committee of the International Brotherhood of Teamsters shall have confirmed that this Amendment is acceptable, and (vii) those documents and instruments as may request to perfect its Lien on any Collateral be reasonably requested by the Administrative Agent and (b) the Company shall have paid all previously invoiced, reasonable, out-of-pocket expenses of the Administrative Agent (including, to the extent required under the Security Agreement,
(ivinvoiced, reasonable attorneys’ fees and expenses) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment and the other Loan Documents Documents, in each case to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower extent reimbursable under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 terms of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The amendments effectiveness of this Amendment and the amendment of the Existing Credit Agreement and Existing Security Agreement set forth in Section 2 of this Amendmentherein is subject to the satisfaction, the joinder on or before August 17, 2017, of the New Borrowers pursuant to Section 3 following conditions precedent (the date on which all of this Amendmentsuch conditions shall first be satisfied (or waived), and which in the limited waiver set forth in Section 4 case of this Amendment, as well as any other terms and conditions set forth herein, shall clause (b) may be effective as of the Effective Date, subject to substantially concurrent with the satisfaction of the following other conditions precedent:specified below, the “Amendment Effective Date”):
(a) the The Administrative Agent shall have received each Agent’s (or its counsel’s) receipt of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by (i) the BorrowersBorrower, the Administrative AgentGuarantors and all Lenders under the Existing Credit Agreement, and (ii) the New Revolving Lenders and New Term Lenders,; or, as to any of the foregoing Lenders, New Revolving Lenders or New Term Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment;
(ii) amended and restated Notes, executed by the Borrowers,Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a) of the Amended Credit Agreement;
(iii) certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of the Amendment and each other Loan Document to which it is, or is intended to be a joinder party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Security AgreementAmendment, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,Transactions and each other Loan Document;
(iv) a copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and complete copy thereof;
(v) a certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the secretaryAmendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), assistant secretary or other Responsible Officer of each New Borrower certifying as to (A) the incumbency accuracy and genuineness completeness of the signature of each officer charter (or other applicable formation document) of such New Borrower executing Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in clause (b) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and certifying that attached thereto is a trueas of the Amendment Effective Date, correct before and complete copy after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; (AE) the articles absence of incorporation any event occurring and continuing, or comparable organizational documents resulting from any of such New Borrower the Borrowings or the issuance of any of the Letters of Credit to be made on the Amendment Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default; and all amendments thereto, certified as (F) the absence of a recent date by the appropriate Governmental Authority in its jurisdiction of formationMaterial Adverse Effect since December 31, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral2016;
(vi) a certificate of the results Secretary or an Assistant Secretary of UCC Lien searches showing all financing statements each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign the Amendment and the other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,delivered thereunder;
(vii) an opinion certificates, in substantially the form of TExhibit I to the Existing Credit Agreement attesting to the Solvency of the Borrower and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer; and
(viii) favorable opinions of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇, LLP, counsel to the Loan Parties, and (B) ▇▇▇▇▇▇ ▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the New Borrowers,
(viii) a copy of Loan Parties, in each Eligible Asset Lease Agreement for each Eligible Asset case dated as of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Amendment Effective Date after giving effect to and addressing such matters as the joinder Lenders may reasonably request, including in respect of the New Borrowers and the other transactions contemplated by this Amendmentcollateral;
(b) the The Lenders shall have received at least five Business Days in advance of (5) days prior to the Amendment Effective Date (x) Date, all documentation and other information that is required by bank regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under including without limitation, the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerPatriot Act;
(c) the Administrative Agent Since December 31, 2016, there shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall not have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(ed) The Borrower shall have paid all costs, fees and expenses (including, without limitation, legal fees and expenses in full in cash to the representations extent due and warranties set forth in Section 7 hereof shall be true payable for which the Borrower has received an invoice at least one (1) day prior to the Amendment Effective Date) and correct in all material respects as of other compensation payable to the date hereof.Agents or the Lender Parties;
Appears in 1 contract
Conditions of Effectiveness. The amendments effectiveness of this Amendment and the amendment of the Existing Credit Agreement set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, herein are subject to the satisfaction of the following conditions precedent:precedent (the date on which all of such conditions shall first be satisfied (or waived), which in the case of clause (b) may be substantially concurrent with the satisfaction of the other conditions specified below, the “Amendment Effective Date”):
(a) the The Administrative Agent shall have received each Agent’s (or its counsel’s) receipt of copies of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the Borrowers, the Guarantors and all Revolving Credit Lenders under the Existing Credit Agreement; or, as to any of the foregoing Lenders, advice satisfactory to the Administrative Agent, and the Lenders,Agent that such ▇▇▇▇▇▇ has executed this Amendment;
(ii) amended certified copies of the resolutions of the boards of directors (or the equivalent thereof or a senior officer thereof or such other evidence in lieu thereof reasonably acceptable to the Administrative Agent) of each of the Borrowers and restated Noteseach Guarantor approving the execution and delivery of the Amendment and each other applicable Loan Document to which it is, executed by or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Borrowers,Amendment, the other Transactions and each other Loan Document;
(iii) (A) a joinder copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Security Agreement, executed Administrative Agent) by the New Borrowers, together with such stock powers Secretary of State (or other agreements appropriate Governmental Authority) of the jurisdiction of its incorporation or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral organization (to the extent required under applicable and available in the Security Agreement,relevant jurisdiction) (in case of Luxembourg Loan Parties, a copy of the applicable up-to-date consolidated articles of association, an electronically signed certificate of non-registration of a judicial decision or administrative dissolution without liquidation (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) from the insolvency register (registre de l’insolvabilité) and issued by the Luxembourg Business Registers as administrator (gestionnaire) of the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés, Luxembourg) in Luxembourg (the “RCSL”) as at a date no earlier than one (1) Business Day prior to the Amendment Effective Date and an up-to-date, true and complete electronically signed excerpt from the RCSL and issued by the Luxembourg Business Registers as administrator (gestionnaire) of the RCSL as at a date no earlier than one (1) Business Day prior to the Amendment Effective Date (or such other date reasonably 2 [Dana – Amendment No. 6] acceptable to the Administrative Agent), as the case may be, thereof as being a true and complete copy thereof or (B) a certificate signed on behalf of each Loan Party certifying no changes to any of such Loan Party’s charters or other constitutive documents since the Amendment No. 5 Effective Date, in lieu of the foregoing;
(iv) a certificate of the secretary, assistant secretary or other each Loan Party signed on behalf of such Loan Party by a Responsible Officer (and with respect to any Luxembourg Loan Party, by a manager (gérant)), dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of each New Borrower the Amendment Effective Date), certifying as to (A) the incumbency accuracy and genuineness completeness of the signature of each officer charter (or other applicable formation document or the equivalent thereof in the applicable jurisdiction) of such New Borrower executing Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document or the equivalent thereof in the applicable jurisdiction) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in clause (iii) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party (and, in the case of a Luxembourg Loan Party, that it is not subject to insolvency proceedings such as bankruptcy (faillite), compulsory liquidation (liquidation judiciaire), voluntary liquidation (liquidation volontaire) winding-up, moratorium, composition with creditors (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de la faillite), fraudulent conveyance, general settlement with creditors, reorganization or similar order or proceedings affecting the rights of creditors generally and any proceedings in jurisdictions other than Luxembourg having similar effects); (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and certifying that attached thereto is a true, correct and complete copy as of the Amendment Effective Date; (AE) the articles absence of incorporation any event occurring and continuing that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2022;
(v) a certificate of the Secretary or comparable organizational documents an Assistant Secretary (or the equivalent thereof) of each Loan Party certifying the names and true signatures of the officers of such New Borrower and all amendments thereto, certified as of a recent date by Loan Party authorized to sign the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateralbe delivered thereunder;
(vi) a certificate, in substantially the results form of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable Exhibit I to the Administrative Agent Existing Credit Agreement attesting to the Solvency of Dana and reflecting no Liens against any of its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Property of the New Borrower transactions contemplated hereby), from its Chief Financial Officer or other than Permitted Liens,financial officer; and
(vii) an opinion favorable opinions of T(A) ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇, LLP, counsel to the Loan Parties, (B) ▇▇▇▇▇▇ ▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan and Ohio counsel to the Loan Parties, (C) Dentons Luxembourg, counsel to the New Borrowers,
Luxembourg Loan Parties, and (viiiD) a copy Responsible Officer of Dana, in each Eligible Asset Lease Agreement for each Eligible Asset case dated as of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Amendment Effective Date after giving effect to and addressing such matters as the joinder Administrative Agent may reasonably request, including in respect of the New Borrowers and the other transactions contemplated by this Amendmentcollateral;
(b) the The Revolving Credit Lenders shall have received at least five Business Days in advance of two (2) days prior to the Amendment Effective Date (x) Date, all documentation and other information that is required by bank regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, regulations and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation including without limitation, the Patriot Act to such New Borrowerthe extent reasonably requested of the Borrowers at least four (4) days prior to the Amendment Effective Date;
(c) the Administrative Agent Since December 31, 2022, there shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall not have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(ed) Dana shall have paid all costs, fees and expenses (including, without limitation, legal fees and expenses in full in cash to the representations extent due and warranties set forth in Section 7 hereof shall be true payable for which Dana has received an invoice at least one (1) day prior to the Amendment Effective Date) and correct in all material respects as of other compensation payable to the date hereofAgents or the Lender Parties.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, This Amendment and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Waiver --------------------------- shall be become effective as of the Effective Datedate first above written when, subject to the satisfaction of the following conditions precedent:
and only when (ai) the Administrative Agent shall have received each counterparts of this Amendment and Waiver executed by the Borrower, the other Credit Parties and the Required Banks or, as to any of the followingBanks, in form and substance reasonably advice satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment Agent that such Bank has executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, Waiver and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(cii) the Administrative Agent shall have additionally received payment or evidence all of payment the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Borrowers Administrative Agent (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified), and in sufficient copies for each Bank:
(a) Certified copies of (i) the resolutions of the costs Board of Directors of (A) each Credit Party approving this Amendment and expenses referred Waiver and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and Waiver.
(b) A certificate of the Secretary or an Assistant Secretary of each Credit Party certifying the names and true signatures such Credit Party authorized to sign this Amendment and Waiver.
(c) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in Section 12.3 4 are correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the date of such certificate; and
(ii) No event has occurred and is continuing that constitutes a Default.
(d) Detailed consolidated financial projections for the fiscal years ending December 31, 1999, December 31, 2000 and December 31, 2001. This Amendment and Waiver is subject to the provisions of Section 15.10 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Agreement shall be become effective as of the first date (the “First Amendment Effective Date, subject to the satisfaction ”) that all of the following conditions precedentprecedent shall have been satisfied:
(a) the 3.1 The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals to the extent requested by the Administrative Agent) and each in form and substance reasonably satisfactory to the Administrative Agent:
(ia) a counterpart counterparts of this Amendment Agreement, duly executed by the Borrowers, the Administrative Agent, and the Lenders,parties hereto;
(iib) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to require evidencing the extent required under the Security Agreement,
(iv) a certificate of the secretaryidentity, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency authority and genuineness of the signature capacity of each officer of such New Borrower executing the Loan Documents thereof authorized to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority act in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment Agreement and the other Loan Documents to which it such Loan Party is a party;
(c) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and (D) certificates as of a recent date of the that each Loan Party is validly existing, in good standing or active status, as applicable, of such New Borrower under the laws of and qualified to engage in business in its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vid) the results opinions of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, Procter LLP as counsel to the New Borrowers,Loan Parties as to the matters concerning the Loan Parties, this Agreement and the other Loan Documents as the Administrative Agent may reasonably request; and
(viiie) a copy of each Eligible Asset Lease Agreement for each Eligible Asset certificate of the New Borrowers,Borrower to the effect that (i) the conditions specified in Sections 3.2 and 3.3 have been satisfied, and (ii) no event has occurred and is continuing which constitutes an Unmatured Default.
(ix) 3.2 The representations and warranties contained in Section 4 of this Agreement are true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;provided in Section 4 of this Agreement.
(d) no Default (other than the Specified Default) 3.3 There shall not have occurred and be continuingsince December 31, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement2021, no any event or circumstance exists thatcircumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; and.
(e) 3.4 The Administrative Agent and each Lender shall have received all documentation and other information that the representations Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and warranties set forth anti-money laundering rules and regulations, including the U.S. Patriot Act, and the Beneficial Ownership Regulation, in Section 7 hereof each case, to the extent requested at least five Business Days prior to the First Amendment Effective Date.
3.5 Any fees owed to any Lender or Arranger required to be paid on or before the First Amendment Effective Date shall be true and correct in all material respects as of the date hereofhave been paid.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Agreement is subject to the satisfaction (or waiver) of the following conditions precedent:
(a) the The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals, email (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart executed counterparts of this Amendment executed by the BorrowersAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lenders,Borrower;
(ii) amended and restated Notes, a Note executed by the Borrowers,Borrower in favor of each Lender requesting a Note;
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to reasonably require evidencing the extent required under the Security Agreement,
(iv) a certificate identity, authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying thereof authorized to act as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority Responsible Officer in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment Agreement and the other Loan Documents to which it such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and (D) certificates as of a recent date of the that each Loan Party is validly existing, in good standing or active status, as applicable, of such New Borrower under the laws of and qualified to engage in business in (A) its jurisdiction of organization,organization and (B) 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 do so would not reasonably be expected to have a Material Adverse Effect;
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an customary opinion of T(i) ▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,Loan Parties and (ii) ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied;
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,duly executed Solvency Certificate;
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base ReportCompliance Certificate, calculating the Borrowing Base on the Effective Date after giving pro forma effect to the joinder of transactions to occur on the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Closing Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, all Credit Extensions to occur on the PATRIOT Act Closing Date);
(x) the financial statements referenced in Section 5.05(a) and (b); and
(xi) such customary documents, instruments, agreements or material information and such additional assurances or certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent, any L/C Issuer, any Swing Line Lender or the Required Lenders reasonably may require.
(b) At least five Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received documentation and other information with respect to each of the Loan Parties requested at least ten Business Days prior to the Closing Date, that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and (y) if any New Borrower qualifies as a “legal entity customer” regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;Bank Secrecy Act.
(c) Any fees required to be paid to the Administrative Agent (for its own account or the account of the Lenders) and the Bookrunners on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or written notice from such Lender prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The amendments effectiveness of this Amendment and the amendment of the Existing Credit Agreement set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, herein is subject to the satisfaction of the following conditions precedent:precedent (the date on which all of such conditions shall first be satisfied (or waived), which in the case of clause (b) may be substantially concurrent with the satisfaction of the other conditions specified below, the “Amendment Effective Date”):
(a) the The Administrative Agent shall have received each Agent’s (or its counsel’s) receipt of copies of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by (i) the Borrowers, the Administrative AgentGuarantors and all Revolving Credit Lenders and Term A Lenders under the Existing Credit Agreement (constituting the Required Lenders thereunder), and (ii) the 2019 New Revolving Credit Lenders,; or, as to any of the foregoing Lenders or 2019 New Revolving Credit Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment;
(ii) amended the Notes payable to the order of the Revolving Credit Lenders and restated Notes, executed by Term A Lenders to the Borrowers,extent requested in accordance with Section 2.16(a) of the Amended Credit Agreement;
(iii) certified copies of the resolutions of the boards of directors (or the equivalent thereof) of each of the Borrowers and each Guarantor approving the execution and delivery of the Amendment and each other Loan Document to which it is, or is intended to be a joinder party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Security AgreementAmendment, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,Transactions and each other Loan Document;
(iv) (A) a copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State (or other appropriate Governmental Authority) of the jurisdiction of its incorporation or organization (to the extent applicable and available in the relevant jurisdiction) (in case of Luxembourg Loan Parties, a copy of the applicable up-to-date consolidated articles of association, an electronic certificate of non-inscription of insolvency proceedings issued by the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés, Luxembourg) in Luxembourg (the “RCS”) as at a date no earlier than one (1) Business Day prior to the Amendment Effective Date and an up-to-date, true and complete electronic excerpt of the RCS as at a date no earlier than one (1) Business Day prior to the Amendment Effective Date), as the case may be, thereof as being a true and complete copy thereof or (B) a certificate signed on behalf of each Loan Party certifying no changes to any of such Loan Party’s charters or other constitutive documents since the Amendment No. 2 Effective Date, in lieu of the foregoing;
(v) a certificate of the secretary, assistant secretary or other each Loan Party signed on behalf of such Loan Party by a Responsible Officer (and with respect to any Luxembourg Loan Party, by a manager (gérant)), dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of each New Borrower the Amendment Effective Date), certifying as to (A) the incumbency accuracy and genuineness completeness of the signature of each officer charter (or other applicable formation document or the equivalent thereof in the applicable jurisdiction) of such New Borrower executing Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document or the equivalent thereof in the applicable jurisdiction) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in clause (iii) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party (and, in the case of a Luxembourg Loan Party, that it is not subject to insolvency proceedings such as bankruptcy (faillite), compulsory liquidation (liquidation judiciaire), voluntary liquidation (liquidation volontaire) winding-up, moratorium, composition with creditors (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de la faillite), fraudulent conveyance, general settlement with creditors, reorganization or similar order or proceedings affecting the rights of creditors generally and any proceedings in jurisdictions other than Luxembourg having similar effects); (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and certifying that attached thereto is a trueas of the Amendment Effective Date, correct before and complete copy after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; (AE) the articles absence of incorporation any event occurring and continuing, or comparable organizational documents resulting from any of such New Borrower the Borrowings or the issuance of any of the Letters of Credit to be made on the Amendment Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default; and all amendments thereto, certified as (F) the absence of a recent date by the appropriate Governmental Authority in its jurisdiction of formationMaterial Adverse Effect since December 31, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral2018;
(vi) a certificate of the results Secretary or an Assistant Secretary (or the equivalent thereof) of UCC Lien searches showing all financing statements each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign the Amendment and the other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,delivered thereunder;
(vii) an opinion a certificate, in substantially the form of TExhibit I to the Existing Credit Agreement attesting to the Solvency of Dana and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the transactions contemplated hereby), from its Chief Financial Officer or other financial officer; and
(viii) favorable opinions of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇, LLP, counsel to the Loan Parties, (B) ▇▇▇▇▇▇ ▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan and Ohio counsel to the Loan Parties, and (C) Dentons Luxembourg, counsel to the New Borrowers,
(viii) a copy of Luxembourg Loan Parties, in each Eligible Asset Lease Agreement for each Eligible Asset case dated as of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Amendment Effective Date after giving effect to and addressing such matters as the joinder Administrative Agent may reasonably request, including in respect of the New Borrowers and the other transactions contemplated by this Amendmentcollateral;
(b) the The Revolving Credit Lenders and Term A Lenders shall have received at least five Business Days in advance of two (2) days prior to the Amendment Effective Date (x) Date, all documentation and other information that is required by bank regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, regulations and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation including without limitation, the Patriot Act to such New Borrowerthe extent reasonably requested of the Borrowers at least four (4) days prior to the Amendment Effective Date;
(c) the Administrative Agent Since December 31, 2018, there shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall not have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(ed) Dana shall have paid all costs, fees and expenses (including, without limitation, legal fees and expenses in full in cash to the representations extent due and warranties set forth in Section 7 hereof shall be true payable for which Dana has received an invoice at least one (1) day prior to the Amendment Effective Date) and correct in all material respects as of other compensation payable to the date hereof.Agents or the Lender Parties;
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in effectiveness of the amendment and restatement of the Existing Credit Agreement pursuant to Section 1 of this Agreement, the amendment to the Subsidiary Guaranty pursuant to Section 2 of this Amendment, Agreement and the joinder of amendment to the New Borrowers Pledge and Security Agreement pursuant to Section 3 of this Amendment, and Agreement (the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, “Restatement Effective Date”) shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Subsidiary Guarantors, the Required Lenders, each 2018 Revolving Lender, each 2018 Term A Lender, each Issuing Bank, the Swingline Lender and the Administrative Agent either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory a favorable written opinion (addressed to the Administrative AgentAgent and the Lenders and dated the Restatement Effective Date) of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Loan Parties, covering such matters relating to the Loan Parties, the Loan Documents, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received:
(i) a counterpart Certificate of this Amendment executed by the Borrowers, Secretary or an Assistant Secretary of each Loan Party certifying (w) that there have been no changes in the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers Certificate of Incorporation or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer charter document of such New Borrower executing the Loan Documents to which it is a party and certifying that Party, as attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, as certified as of a recent date by the appropriate Governmental Authority in its Secretary of State of the jurisdiction of formationits organization, since the date of the certification thereof by such secretary of state, (Bx) the bylaws ByLaws or comparable other applicable organizational documents document, as attached thereto, of such New Borrower Loan Party as in effect on the date of such certificationscertification, (Cy) resolutions duly adopted by of the board Board of directors Directors or comparable other governing body of such New Borrower Loan Party authorizing the execution, delivery and performance of this Amendment each Loan Document to which it is a party, and (z) the other 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 (Din the case of the Borrower) certificates as authorized to request a Borrowing or the issuance of a recent date Letter of the good standing or active status, as applicable, of such New Borrower Credit under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Restated Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering CollateralAgreement;
(viii) a Good Standing Certificate for each Loan Party from the results Secretary of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any State of the Property jurisdiction of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, its organization; and
(xiii) a duly completed Borrowing Base Report, calculating Certificate signed by a Responsible Officer of the Borrowing Base on Borrower certifying as of the Restatement Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date following: (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties of the Borrower set forth in Section 7 hereof shall be the Restated Credit Agreement are true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties are true and correct), except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty is true and correct in all material respects, other than to the extent qualified by materiality or “Material Adverse Effect”, in which case such representation and warranty is true and correct on and as of such earlier date and (y) no Default or Event of Default has occurred and is continuing.
(d) The Administrative Agent shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date (which, in the case of fees calculated by reference to a Lender’s Revolving Commitment and/or Term Loans, shall be calculated with reference to each such Lender’s Revolving Commitment and/or Term Loans outstanding as of the date hereofRestatement Effective Date after giving effect to any prepayments occurring on or prior to such date), including, to the extent invoiced at least one day prior to the Restatement Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Loan Documents and (ii) all accrued and unpaid interest under the Existing Credit Agreement, all accrued and unpaid fees under Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement and any amounts due and payable under Section 2.16 of the Existing Credit Agreement, in each case, with respect to any Lender’s Revolving Commitment and/or Term A Loans under the Existing Credit Agreement that are being reduced and/or terminated pursuant to this Agreement and Section 1.06 of the Restated Credit Agreement as of the Restatement Effective Date. If any LC Disbursements and/or Swingline Loans are outstanding as of the Restatement Effective Date, such LC Disbursements and/or Swingline Loans shall be repaid, together with any interest accrued thereon. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be deemed effective as of the first date (such date being referred to herein as the “Second Amendment Effective Date, subject to the satisfaction ”) on which all of the following conditions precedentprecedent have been satisfied or waived in writing:
(a) the Administrative Agent shall have received each Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be original, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Second Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) a counterpart executed counterparts of this Amendment executed by from each of the BorrowersLoan Parties, the Administrative Agent, and each of the Lenders,Lenders and L/C Issuers;
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to perfect act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing, in good standing and qualified to engage in business in (A) its Lien on any Collateral jurisdiction of organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent required under the Security Agreement,that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(iv) a favorable opinion of ▇▇▇▇▇▇▇ Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(v) a favorable opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of the secretary, assistant secretary or other a Responsible Officer of each New the Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of either (A) the articles attaching copies of incorporation or comparable organizational documents of such New Borrower all consents, licenses and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority approvals required in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing connection with the execution, delivery and performance of this Amendment by each Loan Party, and the other validity against each Loan Party, of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (DB) certificates as of a recent date of the good standing stating that no such consents, licenses or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateralapprovals are so required;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion a certificate signed by a Responsible Officer of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLPthe Borrower certifying that (1) no action, counsel suit, investigation or proceeding is pending or, to the New Borrowers,
knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (viiiA) a copy challenges the validity or enforceability of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Existing Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Amended Credit Agreement, no event any other Loan Document or circumstance exists thatany of the transactions contemplated hereby or thereby, either individually or in otherwise purports to restrict or prohibit the aggregateperformance of all or any portion of this Amendment, has had the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect, (2) since December 31, 2020, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and (3) no Default or Event of Default has occurred and is continuing under the Existing Credit Agreement;
(viii) a Sustainability Metric Annual Certificate, certifying the Sustainability Metric for the fiscal year of the Borrower ended December 31, 2019; and
(eix) a certificate, substantially in the representations form of Exhibit E to the Amended Credit Agreement or otherwise satisfactory to the Administrative Agent, signed by a Responsible Officer of the Parent and warranties set forth in Section 7 hereof shall be true evidencing that, giving pro forma effect as of December 31, 2020 to the transactions to occur on or about the Second Amendment Effective Date (including, all Credit Extensions to occur on the Second Amendment Effective Date and correct in all material respects the use of proceeds thereof), as of the date hereofof the Second Amendment Effective Date, the Loan Parties are in pro forma compliance with the financial covenants contained in Section 7.11 of the Amended Credit Agreement, setting forth a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter ending December 31, 2020, and including a schedule of Unencumbered Eligible Properties, all in form and detail reasonably satisfactory to the Administrative Agent.
(b) At least ten Business Days prior to the Second Amendment Effective Date, the Administrative Agent and the Lenders shall have received documentation and other information with respect to each of the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(c) The Administrative Agent shall have received payment of all interest and fees that have accrued through and including the Second Amendment Effective Date with respect to the Revolving Credit Facility under the Existing Credit Agreement.
(d) All fees required hereunder or under the Fee Letters to be paid on or before the Second Amendment Effective Date to the Administrative Agent, the Arrangers, the Bookrunners and/or the Lenders shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on the Second Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of Section 9.03(e) of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3, each Lender and L/C Issuer that has signed this Amendment shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender or L/C Issuer, as applicable, including any non-pro-rata prepayment of Revolving Credit Loans made to the Revolving Credit Lenders in connection with the reduction of the Revolving Credit Facility effected hereunder, and on the Second Amendment Effective Date, (i) the participation interests of the Revolving Lenders in any outstanding Letters of Credit shall be automatically reallocated among the Revolving Lenders in accordance with their adjusted Applicable Percentage as set forth on the Schedule 2.01 included in Annex II, (ii) each Lender with a new Revolving Credit Commitment or whose Revolving Credit Commitment has increased on the Second Amendment Effective Date shall make a Revolving Credit Loan in the amount necessary to fund its new or increased Applicable Percentage of all existing Revolving Credit Loans, (iii) the Administrative Agent will use the proceeds thereof to (x) repay in full the Revolving Credit Loans outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this Amendment of each lender that is party to the Existing Credit Agreement but is not party to the Amended Credit Agreement, and (y) pay existing Revolving Lenders whose Applicable Revolving Credit Percentage is decreasing on the Second Amendment Effective Date such amounts as are necessary so that the participation of each Revolving Credit Lender party to the Amended Credit Agreement of all existing Revolving Credit Loans will be equal to such Lender’s adjusted Applicable Revolving Credit Percentage as set forth on the Schedule 2.01 included in Annex II, (iv) the Borrower shall prepay any Revolving Credit Loans outstanding after giving effect to the foregoing, solely to the extent necessary to keep the outstanding Revolving Credit Loans ratable with the Applicable Revolving Credit Percentages set forth on the Schedule 2.01 included in Annex II and (v) the Borrower shall pay any amounts required pursuant to Section 3.05 on account of the payments made under clauses (i) through (iv).
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Amendment is subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent’s receipt of:
(i) a counterpart counterparts of this Amendment duly executed by the BorrowersBorrower, the Augmenting Lender, each Increasing Lender and the Administrative Agent;
(ii) the Consent and Reaffirmation attached hereto as Annex III (the “Reaffirmation”) duly executed by the REIT and each Guarantor;
(iii) each other document set forth on Annex IV attached hereto;
(iv) all of the Administrative Agent’s accrued costs, fees and expenses in connection with this Amendment through the date hereof that are required to be paid on or prior to the date hereof pursuant to Section 9.6(a) of the Credit Agreement;
(v) (x) pro forma financial statements giving effect to incurrence of the Tranche 3 Term Loans and the Tranche 4 Term Loans, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the Administrative Agent, that the Borrower can repay its debts and the Lenders,
(ii) amended satisfy its other obligations as and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowerswhen they become due, together with with, (y) such stock powers or other agreements or instruments of transfer information as the Administrative Agent may reasonably request to perfect its Lien on any Collateral to confirm the extent required under the Security Agreement,
(iv) a certificate of the secretarytax, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency legal, and genuineness of the signature of each officer of business assumptions made in such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a partypro forma financial statements, and (Dz) certificates as of a recent date unaudited consolidated financial statements of the good standing or active statusREIT and its Subsidiaries for the fiscal quarter ended March 31, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;2019; and
(vi) due diligence responses to its requests regarding the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing officesEligible Properties, such searches to be as of including a date acceptable to the Administrative Agent and reflecting no Liens against any list of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers Properties and the other transactions contemplated by this Amendment;NOI attributable thereto; and
(b) upon the Lenders shall have received reasonable request of any Increasing Lender or the Augmenting Lender made at least five ten Business Days in advance of prior to the Amendment No. 1 Effective Date (x) all Date, the Borrower must have provided to such Lender the documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under including the Beneficial Ownership RegulationPATRIOT Act, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or each case at least five Business Days prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.Amendment No. 1
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 1 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Amendment shall be become effective as of the Effective Datelater of (a) April 24, subject to 2001 and (b) the satisfaction date on which each of the following conditions precedent:precedent shall have been satisfied (such later date being the "Amendment No. 6 Effective Date"):
(a) the Administrative The Agent shall have received (i) counterparts of this Amendment executed by the Borrower, the Parent Guarantor and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment and (ii) the Consent attached hereto executed by each of the Loan Parties.
(b) The Agent shall have received on or before the Amendment No. 6 Effective Date the following, each dated such date (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent, and in sufficient copies for each Lender:
(i) Certified copies of (i) the resolutions of the Board of Directors of (A) the Borrower and the Parent Guarantor approving this Amendment and the matters contemplated hereby and thereby and (B) each other Loan Party evidencing approval of the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Amendment and the Consent and the other documents to be delivered hereunder and thereunder.
(iv) Counterparts of the Consent appended hereto (the "Consent"), executed by each of the Loan Parties.
(v) A favorable opinion of Ropes & Gray, ▇▇unsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Agent.
(vi) Such financial, business and other information regarding the Borrower and the Parent Guarantor and their respective property, assets and businesses as the Agent or the Lenders shall have requested.
(c) The representations and warranties contained in each of the Loan Documents shall be correct in all material respects on and as of the Amendment No. 6 Effective Date, as though made on and as of such date (other than any such representations or warranties that, by their terms, refer to a specific date other than the Amendment No. 6 Effective Date, in which case as of such specific date).
(d) No event shall have occurred and be continuing that constitutes a Default.
(e) On the Effective Date, the Borrower shall have paid to the Agent, for the ratable account of each of the Lenders that has executed and delivered a counterpart of this Amendment executed to the Agent prior to 12:00 Noon (New York City time) on April 18, 2001, an amendment fee of 0.25% on the aggregate Commitments of such Lender as of the Effective Date, it being understood that no amendment fee shall be payable by the BorrowersBorrower for the account of any Lender if this Amendment has not been approved prior to 12:00 Noon (New York City time) on April 18, 2001 by the Administrative Agent, Required Lenders.
(f) All of the accrued fees and expenses of the Agent and the Lenders,
Lenders (iiincluding the accrued fees and expenses of counsel for the Agent) amended that are then due and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority payable shall have been paid in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance full. The effectiveness of this Amendment and is further conditioned upon the other Loan Documents to which it is a party, and (D) certificates as accuracy of a recent date all of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect factual matters described herein. This Amendment is subject to the New Borrowers, together with loss payable and lender endorsements in favor provisions of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 9.01 of the Credit Agreement, except that no amendment or waiver of any provision of this Section 2, nor consent to any departure by the extent invoiced on Parent Guarantor or prior to the date hereof;
(d) no Default (other than Borrower therefrom, shall in any event be effective unless the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof same shall be true in writing and correct in all material respects as of signed by the date hereofRequired Lenders.
Appears in 1 contract
Sources: Credit Agreement (Iron Age Corp)
Conditions of Effectiveness. The obligations of the 2022 Incremental Term Lenders to make 2022 Incremental Term Loans under the Amended Credit Agreement and the amendments set forth to the Credit Agreement contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, 1 hereof shall be become effective as of the first date (the “Amendment No. 5 Effective Date, subject to the satisfaction of ”) on which the following conditions precedent:shall have been satisfied (or waived by the Lenders party hereto and the 2022 Incremental Term Lenders):
(a) the The Administrative Agent shall have received each counterparts of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the BorrowersBorrower, the Administrative Agent, the Lenders party hereto and the Lenders,
2022 Incremental Term Lenders and (ii) amended the Guarantor Consent and restated Notes, Reaffirmation attached hereto (the “Guarantor Consent”) executed by the Borrowers,each Guarantor.
(iiib) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the The Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
shall have received a customary legal opinion from (ivi) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇ S▇▇▇▇▇▇ LLP, New York counsel to the New Borrowers,Loan Parties and (ii) each local counsel to the Loan Parties listed on Schedule 4(b) to this Amendment.
(viiic) The Administrative Agent shall have received, with respect to each Loan Party, certificates of good standing from the secretary of state of the state of organization of each Loan Party (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certifying true and complete copies of the Organizational Documents attached thereto and evidencing the identity, authority and capacity of such Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Guarantor Consent.
(d) The Administrative Agent shall have received (i) a copy Committed Loan Notice no later than 1:00 p.m., New York time, three (3) Business Days (in the case of Eurodollar Rate Loans) or two (2) Business Days (in the case of Base Rate Loans), in each case prior to the requested date of the Borrowing in respect of the 2022 Incremental Term Loans (or in each case such shorter notice that shall be acceptable to the Administrative Agent in its discretion) and (ii) an Incremental Loan Request; provided that this Amendment shall be deemed to be the Incremental Loan Request with respect to the 2022 Incremental Term Loans for purposes of the Amended Credit Agreement and all parties hereto hereby agree that this Amendment shall satisfy all requirements under the Amended Credit Agreement for the Incremental Loan Request with respect to the 2022 Incremental Term Loans.
(e) All fees (including fees required to be paid pursuant to the 2022 Incremental Fee Letter) and expenses (in the case of expenses, to the extent invoiced at least three (3) Business Days prior to the Amendment No. 5 Effective Date (except as otherwise reasonably agreed by the Borrower)) required to be paid under the Credit Agreement on or prior to the Amendment No. 5 Effective Date shall have been paid, or shall be paid substantially concurrently with the Borrowing of the 2022 Incremental Term Loans on the Amendment No. 5 Effective Date.
(f) The Administrative Agent and the 2022 Incremental Term Lenders shall have received copies of (i) Healthsmart’s unaudited consolidated financial statements as of December 31, 2019 and December 31, 2020, consisting of the unaudited consolidated balance sheets as of such dates and the related unaudited statements of income and (ii) Healthsmart’s unaudited consolidated financial statements as of October 31, 2021, consisting of the unaudited consolidated balance sheet as of such date and the related unaudited statement of income for the 10-month period then ended (subject in each case of clauses (i) and (ii) to (a) the absence of footnote disclosures and other presentation items and (b) changes resulting from year-end adjustments); provided that the Administrative Agent and the 2022 Incremental Term Lenders hereby acknowledge receipt of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,foregoing financial statements specified in clauses (i) and (ii) above.
(ixg) true The Administrative Agent and correct copies the 2022 Incremental Term Lenders shall have received a pro forma unaudited consolidated balance sheet of all Material Contractual Obligations described on Schedule 3.7 heretothe Borrower as of September 30, and
(x) a duly completed Borrowing Base Report2021, calculating the Borrowing Base on the Effective Date prepared after giving effect to the joinder Healthsmart Transactions as if the Healthsmart Transactions had occurred as of such date (utilizing, for purposes of such pro forma unaudited consolidated balance sheet, Healthsmart’s unaudited consolidated balance sheet as of October 31, 2021), which need not be prepared in compliance with Regulation S-X of the New Borrowers and the other transactions contemplated by this Amendment;Securities Act of 1933, as amended, or include adjustments for purchase accounting.
(bh) To the Lenders extent such documentation and information has not previously been delivered in connection with the funding of the Closing Date Term Loans, the 2020 Incremental Term Loans and/or the 2021 Incremental Term Loans, the Administrative Agent shall have received at least five two (2) Business Days in advance of prior to the Amendment No. 5 Effective Date (xor such shorter period as may be acceptable to the Administrative Agent) all documentation and other information that is in respect of the Borrower and the Guarantors required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, and regulations (yincluding the USA PATRIOT Act) if any New Borrower qualifies as a “legal entity customer” under that has been reasonably requested in writing by the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation Administrative Agent at least ten (10) Business Days prior to such New Borrower;the Amendment No. 5 Effective Date.
(ci) the The Administrative Agent shall have received payment a solvency certificate from a Financial Officer of the Borrower (after giving effect to the Healthsmart Transactions) substantially in the form attached as Exhibit I to the Amended Credit Agreement (or, at the option of the Borrower, a third party opinion as to the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis).
(j) Since the date of the Healthsmart Acquisition Agreement, no “Material Adverse Effect” (as defined in the Healthsmart Acquisition Agreement) shall have occurred.
(k) The Healthsmart Acquisition shall have been consummated, or evidence shall be consummated substantially concurrently with the Borrowing of payment 2022 Incremental Term Loans on the Amendment No. 5 Effective Date, in all material respects in accordance with the terms of the Healthsmart Acquisition Agreement; provided that no provision of the Healthsmart Acquisition Agreement shall have been amended or waived, nor shall any consent have been given, by the Borrowers Borrower or any of its Affiliates in a manner materially adverse to the 2022 Incremental Term Lenders (in their capacity as such) without the consent of the costs and expenses referred 2022 Incremental Term Lenders (such consent not to be unreasonably withheld, delayed or conditioned); provided, further, that (i) the 2022 Incremental Term Lenders shall be deemed to have consented to such waiver, amendment or consent unless they shall object thereto within two (2) Business Days after receipt of written notice of such waiver, amendment or consent, (ii) any amendment, waiver or consent which results in Section 12.3 of a reduction in the Credit Agreement, purchase price for the Healthsmart Acquisition shall be deemed not to be materially adverse to the 2022 Incremental Term Lenders to the extent invoiced on (x) such reduction is applied to reduce the aggregate 2022 Incremental Term Loan Commitments or prior (y) such reduction is pursuant to the Healthsmart Acquisition Agreement as in effect on the date hereof;
thereof, including pursuant to any working capital and/or purchase price (dor similar) no Default adjustment provision set forth in the Healthsmart Acquisition Agreement as in effect on the date thereof (in each case as amended or waived or consented to in compliance with this clause (k)), (iii) any amendment, waiver or consent which results in an increase in purchase price for the Healthsmart Acquisition shall be deemed not to be materially adverse to the 2022 Incremental Term Lenders so long as (x) such increase is funded with an equity contribution constituting an issuance of Qualified Equity Interests by Holdings or any Parent Company to a Person other than a Subsidiary of Holdings or borrowings under the Revolving Facility (so long as such borrowings (other than than, for the Specified Default) shall have occurred and be continuingavoidance of doubt, and since the effective date any borrowings used to fund working capital needs of the most recent financial statements delivered Borrower or its Restricted Subsidiaries or Healthsmart) to the extent used to fund such increase do not exceed $10,000,000 in aggregate principal amount) or (y) such increase is pursuant to Section 7.1(athe Healthsmart Acquisition Agreement as in effect on the date thereof, including pursuant to any working capital and/or purchase price (or similar) of the Credit Agreement, no event or circumstance exists that, either individually or adjustment provision set forth in the aggregate, has had Healthsmart Acquisition Agreement as in effect on the date thereof (in each case as amended or could reasonably be expected waived or consented to have a in compliance with this clause (k)) and (iv) any change to the definition of “Material Adverse Effect; and” (as defined in the Healthsmart Acquisition Agreement) shall be deemed materially adverse to the 2022 Incremental Term Lenders and shall require the consent of the 2022 Incremental Term Lenders (not to be unreasonably withheld, delayed, denied or conditioned), provided that the 2022 Incremental Term Lenders shall be deemed to have consented to such change unless they shall object thereto within two (2) business days after receipt of written notice of such change.
(el) the representations and warranties set forth in Section 7 hereof The Healthsmart Specified Representations shall be true and correct in all material respects on the Amendment No. 5 Effective Date (unless such Healthsmart Specified Representations relate to an earlier date, in which case, such Healthsmart Specified Representations shall have been true and correct in all material respects as of such earlier date).
(m) The Healthsmart Specified Acquisition Agreement Representations shall be true and correct in all material respects on the date hereofAmendment No. 5 Effective Date, but only to the extent that the Borrower (or any of its Affiliates) has the right (taking into account any applicable cure provisions) to terminate its (or such Affiliates’) obligations under the Healthsmart Acquisition Agreement, or to decline to consummate the Healthsmart Acquisition (in each case, in accordance with the terms thereof) as a result of a breach of such Healthsmart Specified Acquisition Agreement Representations.
(n) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that the condition set forth in clause (l) above has been satisfied. For purposes of determining compliance with the conditions specified in this Section 4, the Administrative Agent, each Term Lender and each 2022 Incremental Term Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent, a Term Lender or a 2022 Incremental Term Lender, as applicable, unless, in the case of a Term Lender or a 2022 Incremental Term Lender, the Administrative Agent shall have received notice from such Term Lender or 2022 Incremental Term Lender prior to the proposed Amendment No. 5 Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Health Solutions Holdings, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, This Agreement is subject to the satisfaction provisions of Section 11.01 of the Credit Agreement, and shall become effective when, and only when, each of the following conditions precedentshall have been satisfied:
(a) the Administrative Agent shall have received each all of the followingfollowing documents (in sufficient copies for each Lender), each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment Agreement executed by (A) the BorrowersBorrower and the Loan Party Representative (on behalf of the other Loan Parties), (B) the Required Lenders, (C) all the Tranche B Term Lenders identified on Schedule 2.01-A to this Agreement, (D) all Additional Lenders, (E) Lenders holding a majority of the Total Outstanding Amount of each Tranche of the Term Facility (other than the Tranche B Term Facility), and (F) the Required Revolving Lenders, or, as to any such Lender, advice satisfactory to the Administrative Agent, and the Lenders,Agent that such Lender has executed this Agreement;
(ii) amended and restated Notes, a consent to this Agreement executed by the Borrowers,each Guarantor;
(iii) a joinder one or more Notes in the form of Exhibit C-1-BR to this Agreement, payable to the Security Agreementorder of each Lender requesting such a Note, duly executed by the New BorrowersBorrower, together with evidencing the Tranche B Replacement Term Loans of such stock powers Lender;
(iv) a Certificate executed by a Responsible Officer of the Loan Party Representative, on behalf of itself and the other Loan Parties, dated the Agreement Effective Date, (A) attaching true and correct copies of resolutions of each Loan Party as to the execution and delivery of this Agreement and any such Note or such consent of a Guarantor, as the case may be, (B) confirming the matters provided in subsection (c) below, and (C) as to such other agreements or instruments of transfer matters as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,reasonably request; and
(v) copies favorable opinions of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New BorrowersDow, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, PLC, special counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset Loan Parties, and of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect General Counsel to the joinder Loan Party Representative, on behalf of the New Borrowers Loan Parties, each addressed to the Administrative Agent and each Lender, as to such matters with respect to the other transactions contemplated Loan Parties, this Agreement, the Credit Agreement, as amended by this Amendment;Agreement, such Notes and such consents of the Guarantors as the Administrative Agent may reasonably request.
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs following: (i) for the account of each Tranche B Term Lender, accrued and expenses referred in Section 12.3 unpaid interest on the Tranche B Term Loans of such Lender to the Agreement Effective Date, (ii) for the account of the Credit AgreementAdministrative Agent, the amount of any expenses required to the extent invoiced be reimbursed on or prior before the Agreement Effective Date pursuant to Section 5.03 hereof, and (iii) for the date hereofaccount of any arranger in connection with the transactions contemplated hereby, any amounts as may have been separately agreed with the Borrower;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(ec) the representations and warranties set forth of the Loan Parties contained in Section 7 5.04 hereof shall be true and correct in all material respects as respects; and
(d) evidence that arrangements satisfactory to the Administrative Agent shall have been made for the application of the date hereofproceeds of the Tranche B Replacement Term Loans made by the Additional Lenders to the repayment of all Tranche B Term Loans which have not been designated for conversion pursuant to Section 4.01.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder Amendment on each of the New Borrowers pursuant to Section Amendment No. 3 of this Amendment, Closing Date and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Amendment No. 3 Effective Date, as applicable, is subject to the satisfaction (or waiver by each of the Consenting Lenders) of the following conditions precedent:
(a) the Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrower, the Guarantors party hereto and each of the followingConsenting ▇▇▇▇▇▇▇ and acknowledged by the Administrative Agent;
(i) the Administrative Agent and the Required Lenders shall have received executed copies of amendments or waivers, as applicable, to the UST Tranche A Credit Agreement and the UST Tranche B Credit Agreement, each in form and substance reasonably satisfactory to the Consenting Lenders and (ii) the conditions precedent set forth in each such amendment or waiver, as applicable, shall have been satisfied;
(c) the Required Lenders shall have received the Initial Budget;
(d) the Administrative Agent shall have received a certificate executed by the Secretary (or other equivalent officer, partner or manager) of each Loan Party dated as of the Amendment No. 3 Closing Date certifying: (i) as true and correct a copy of resolutions in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart , of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors (or comparable other equivalent governing body body, member or partner) of such New Borrower each Loan Party approving and authorizing the execution, delivery and performance by such Loan Party of this Amendment and all documents, instruments and agreements executed and/or delivered in connection herewith (if any) and of the transactions contemplated herein and therein, (ii) as true and correct and in full force and effect, without any amendment except as shown, a copy of the Organization Documents of each Loan Party, or that there have been no amendments, supplements, or other modifications to such Loan Party’s Organizational Documents since the Restatement Effective Date and that the copies of such Loan Party’s Organizational Documents delivered to which it is Administrative Agent on such date as a partypart of the “secretary’s certificate” delivered by such Loan Party are true, correct and complete copies of such Organizational Documents as currently in full force and effect, (iii) if available, a true and correct a copy of a good standing certificate/certificate of status for each Loan Party certified by the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation dated a recent date prior to the date hereof, and (Div) certificates as of a recent date the names and signatures of the good standing or active status, as applicable, officers of such New Borrower under Loan Party authorized to execute and deliver this Amendment and all documents, instruments and agreements executed and/or delivered in connection herewith (if any) on behalf of such Loan Party pursuant to the laws resolutions referenced in clause (i) above (and such certificate shall be countersigned by another officer of its jurisdiction such Loan Party certifying the name, office and signature of organization,the Secretary (or other equivalent officer, partner or manager) of such Loan Party giving such certificate);
(ve) copies of insurance certificates describing the Borrower shall have paid all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor invoiced expenses of the Administrative Agent with respect to and the Consenting Lenders (including, without limitation, all insurance policies covering Collateral;
(vi) the results previously invoiced, reasonable, out-of-pocket expenses of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent (including, to the extent invoiced, reasonable attorneys’ fees and reflecting no Liens against any expenses of Holland & Knight LLP, Milbank LLP and White & Case LLP, in each case to the extent reimbursable under the terms of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, Credit Agreement); and
(xf) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties Limited Waiver set forth in Section 7 hereof shall be true 2, no Default or Event of Default has occurred and correct in all material respects as is continuing or would result from the execution of this Amendment or consummation of the date hereoftransactions contemplated hereunder.
Appears in 1 contract
Sources: Credit Agreement (Yellow Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this AmendmentThis Amendment shall become effective when, and only when, on or before January 30, 1997 the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Agent shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedenthave received:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart Counterparts of this Amendment executed by the Borrowers, the Administrative Agent, Lessee and the Lenders,
(ii) amended and restated NotesRequired Lessors, executed by the Borrowers,
(iii) a joinder or advice satisfactory to the Security Agreement, Agent that such Lessors have executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(bi) A Security Agreement (the Lenders shall have received at least five Business Days "Security Agreement") in advance substantially the form of Exhibit A duly executed by the Lessee, together with a duly executed Officer's Certificate from the Lessee, certifying that the Lessee has submitted to the Illinois Motor Vehicle Authority with respect to each Vehicle subject to the Security Agreement which is titled in Illinois, such certificates, documents and fees as may be required by such Authority to perfect the security interest of the Effective Date (x) all documentation Agent, on behalf of the Lessors, in such Vehicles, together with, for each such Vehicle, copies of each application for vehicle title and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, certificate of title of a vehicle reflecting the PATRIOT Act and any applicable “know your customer” rules and regulationsrecorded security interest of the Agent, and (yii) if evidence of the completion of all other recordings and filings, including without limitation the filing of appropriately completed UCC financing statements for all Vehicles and the other Collateral subject to the Security Agreement with evidence of filing in the jurisdiction in which the Lessee has its principal office and in each other jurisdiction in which any New Borrower qualifies as a “legal entity customer” under such vehicle is to be titled, with respect to the Beneficial Ownership Regulation, a Beneficial Ownership Certification Security Agreement that the Agent may deem necessary or desirable in relation order to such New Borrowerperfect and protect the liens created thereby;
(c) A letter of credit, in form and substance satisfactory to the Administrative Agent shall have received payment or evidence and issued by NationsBank of payment by Texas, N.A., for the Borrowers account of the costs Lessee and expenses referred in Section 12.3 for the benefit of the Credit AgreementAgent, to on behalf of the extent invoiced on or prior to Lessors, in a face amount not less than the date hereofmaximum Rent payable under the Lease in any quarter;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date Certified resolutions of the most recent financial statements delivered pursuant to Section 7.1(a) Board of Directors of the Credit Lessee approving this Amendment, the Security Agreement and the transactions contemplated hereby and thereby together with an incumbency certificate with respect to the officers of the Lessee executing this Amendment and the Security Agreement;
(e) Opinions of counsel to the Lessee in substantially the forms of Exhibits ▇-▇, no event or circumstance exists that▇-▇ and B-3;
(f) An amendment fee as provided in a letter agreement dated as of January 23, either individually or in 1997 between the aggregateAgent and Consolidated Freightways, has had or could reasonably be expected to have a Material Adverse EffectInc.; and
(eg) Such other approvals, opinions or documents as any Lessor through the representations Agent may reasonably request. The Agent shall notify the Lessee and warranties the Lessors after the conditions set forth in Section 7 hereof shall be true above have been satisfied or waived and correct in all material respects as of the date hereofthis Amendment is effective.
Appears in 1 contract
Sources: Participation Agreement (Consolidated Freightways Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the first date (the “Amendment Effective Date, subject to the satisfaction ”) on which each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment duly executed by the Borrowers, each of the Lenders and the Administrative Agent, and the Lenders,.
(iib) amended The Administrative Agent shall have received counterparts of the Consent and restated Notes, Reaffirmation attached as Exhibit A hereto duly executed by the Borrowers,Guarantors.
(iiic) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the The Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
shall have received a favorable written opinion (iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable addressed to the Administrative Agent and reflecting no Liens against any the Lenders and dated the Amendment Effective Date) of the Property each of the New Borrower other than Permitted Liens,
(viii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Borrowers, (ii) ▇▇▇▇▇▇▇, Bermuda counsel for the Borrowers, (iii) Stibbe, Dutch counsel for the Borrowers, (iv) ▇▇▇▇▇ S& ▇▇▇▇▇▇▇▇ LLPZurich, Swiss counsel for the Borrowers, in each case in form and substance reasonably satisfactory to the New Administrative Agent and its counsel and covering such matters relating to the Borrowers,, the Amended Credit Agreement, this Amendment or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsels to deliver such opinions.
(viiid) a copy of each Eligible Asset Lease Agreement for each Eligible Asset 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 New Borrowers,, the authorization of the Transactions and any other legal matters relating to the Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ixe) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretoThe Administrative Agent shall have received a certificate, and
(x) a duly completed Borrowing Base Report, calculating dated the Borrowing Base on the Amendment Effective Date after giving effect to and signed by the joinder President, a Vice President or a Financial Officer of the New Borrowers Company, confirming compliance with the conditions set forth in paragraphs (a) and the other transactions contemplated by this Amendment;
(b) of Section 4.02 of the Lenders Amended Credit Agreement.
(f) The Administrative Agent shall have received at least five Business Days in advance of received, to the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and extent any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the date hereof, a Beneficial Ownership Certification in relation to such New Borrower;.
(cg) the The Administrative Agent shall have received payment or evidence (i) for the account of payment each Lender that delivers its executed signature page to this Agreement by no later than the date and time specified by the Borrowers of the costs and expenses referred Administrative Agent, an upfront fee in Section 12.3 of the Credit Agreement, an amount equal to the extent invoiced applicable amount previously disclosed to the Lenders and (ii) all fees and other amounts due and payable on or prior to the date hereof;
(d) no Default (other than Amendment Effective Date, including, to the Specified Default) shall have occurred and extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be continuing, and since reimbursed or paid by the effective date of Company under the most recent financial statements delivered pursuant to Section 7.1(a) of the Amended Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Cimpress N.V.)
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, Amendment (the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the “Amendment No. 2 Effective Date, ”) is subject to the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received each counterparts of this Amendment bearing the signature of the followingBorrowers, in form each Lender (including each New Lender and substance reasonably satisfactory to each Departing Lender), the Issuing Banks and the Administrative Agent:. CH\2056988.7
(b) The Administrative Agent shall have received (i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
favorable written opinion (ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable addressed to the Administrative Agent and reflecting no Liens against any the Lenders and dated the Amendment No. 2 Effective Date) of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇Skadden, Arps, Slate, Meagher, & ▇▇▇▇ P▇▇▇▇▇ LLP, counsel for the Company and (ii) a favorable written opinion (addressed to the Administrative Agent and the Lenders dated the Amendment No. 2 Effective Date) of ▇▇▇▇▇▇▇▇ S▇. ▇▇▇▇▇▇ LLP▇, general counsel for the Company, and in each case covering such other matters relating to the New Borrowers,Company, the Loan Documents or this Amendment as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsels to deliver such opinions.
(viiic) The Administrative Agent shall have received (i) a copy of each Eligible Asset Lease Agreement for each Eligible Asset certificate signed by a Financial Officer of the New Borrowers,
Company certifying that, after giving effect to this Amendment, the Company is in compliance with the conditions set forth in paragraphs (ixa) true and correct copies (b) of all Material Contractual Obligations described on Schedule 3.7 hereto, and
Section 4.02 of the Credit Agreement and (xii) a duly completed Borrowing Base Report, calculating the Borrowing Base documents consistent with those delivered on the Effective Date of the Credit Agreement as to the corporate power and authority of the Borrowers to borrow under the Credit Agreement after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;.
(bd) the Lenders The Administrative Agent shall have received at least five Business Days received, for the account of each Lender party hereto (including each New Lender but excluding each Departing Lender) that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, an upfront fee in advance of an amount equal to the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, amount previously disclosed to the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;Lenders.
(ce) the The Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs Administrative Agent’s and its affiliates’ fees and reasonable and documented out-of-pocket expenses (including reasonable and documented out-of-pocket fees and expenses referred of counsel for the Administrative Agent) in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofconnection with this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Crane Co /De/)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, This Amended and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms Restated Credit Agreement shall become effective on and conditions set forth herein, shall be effective as of the first date (the “Restatement Effective Date, subject to the satisfaction ”) on which all of the following conditions precedentprecedent shall have been satisfied:
(a) the The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) a counterpart executed counterparts of this Amendment executed by the BorrowersAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lenders,Borrower;
(ii) amended and restated Notes, a Note executed by the Borrowers,Borrower in favor of each Lender requesting a Note;
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to require evidencing the extent required under the Security Agreement,
(iv) a certificate identity, authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying thereof authorized to act as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority Responsible Officer in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment Agreement and the other Loan Documents to which it such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and (D) certificates as of a recent date of the that each Loan Party is validly existing, in good standing or active status, as applicable, of such New Borrower under the laws of and qualified to engage in business in (A) its jurisdiction of organization,organization and (B) 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an favorable opinion of THunton & ▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viiivi) a copy certificate of a Responsible Officer of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
Loan Party either (ixA) true and correct attaching copies of all Material Contractual Obligations described on Schedule 3.7 heretoconsents, and
(x) a duly completed Borrowing Base Reportlicenses and approvals required in connection with the execution, calculating delivery and performance by such Loan Party and the Borrowing Base on the Effective Date after giving effect to the joinder validity against such Loan Party of the New Borrowers Loan Documents to which it is a party, and the other transactions contemplated by this Amendmentsuch consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(bvii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) the Lenders shall conditions specified in this Section 4.01 have received at least five Business Days in advance been satisfied (other than those conditions contingent upon the satisfaction of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have and/or the Lenders with respect to certain items received payment or evidence of payment by the Borrowers of the costs and expenses referred in them under this Section 12.3 of the Credit Agreement4.01), to the extent invoiced on or prior to the date hereof;
(dB) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, that there has been no event or circumstance exists thatsince December 31, 2012 that has had or would be reasonably expected to have, either individually or in the aggregate, has had a Material Adverse Effect, (C) no action, suit, investigation or could proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) would reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.,
Appears in 1 contract
Sources: Credit Agreement (American Residential Properties, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 This Agreement shall become effective when (i) the Administrative Agent shall have received counterparts of this AmendmentAgreement executed by the Borrower and all Lenders party hereto, (ii) the joinder of Administrative Agent shall have received the New Borrowers fees provided to be paid pursuant to Section 3 of this Amendment, the Fee Letter and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(aiii) the Administrative Agent shall have received each of the followingfollowing items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance reasonably satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto and the conditions specified below shall have been satisfied:
(ia) A Revolving Loan Note payable to the order of each Lender that shall have requested a counterpart Revolving Loan Note in accordance with this Agreement and the Swing Line Note payable to the Swing Line Bank.
(b) From each Subsidiary of this Amendment the Borrower (except for the Mortgage Banking Subsidiaries and the Subsidiaries listed in Schedule VII hereto), a Guaranty executed by and delivered as of the BorrowersClosing Date.
(c) The favorable written opinions addressed to the Lenders, and in form and substance satisfactory to the Administrative Agent, and the Lenders,
from (iii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of TBilzin ▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇ S▇▇▇▇, LLP (counsel to the Borrower), with respect to the Borrower and (ii) Bilzin ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP or any other firm reasonably satisfactory to the Administrative Agent (as counsel for such other Loan Parties as the Administrative Agent may require) which opinions shall be reasonably satisfactory to the Administrative Agent. The Borrower hereby instructs such counsel to prepare their opinions and deliver such opinions to the New Borrowers,Lenders for the benefit of the Lenders, and such opinions shall contain a statement to such effect.
(viiid) The following supporting documents with respect to the Borrower and (to the extent required by Administrative Agent in its sole discretion) each other Loan Party: (i) a copy of each Eligible Asset Lease Agreement for each Eligible Asset its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date to be a true and accurate copy by the Secretary of State of its state of incorporation or formation; (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date, as to its existence and (if available) good standing; (iii) a certificate of the New Borrowers,
Secretary of State of each jurisdiction, other than its state of incorporation, in which it does business, as to its qualification as a foreign corporation; (ixiv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date; (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement and any Notes, Guaranties and other Loan Documents delivered on the Closing Date to which it is a party and the performance by it of all Material Contractual Obligations described on Schedule 3.7 hereto, and
its obligations thereunder; and (xvii) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation such additional supporting documents and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act with respect to its operations and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies affairs as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could may reasonably be expected to have a Material Adverse Effect; andrequest.
(e) Certificates signed by a duly authorized officer of the Borrower stating that: (i) the representations and warranties set forth of the Borrower contained in Section 7 Article IV hereof shall be true are correct and correct in all material respects accurate on and as of the date hereofClosing Date as though made on and as of the Closing Date and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default hereunder.
(f) A certificate signed by an Authorized Financial Officer of the Borrower showing in reasonable detail the calculations used to determine the Leverage Ratio for the Pricing Grid.
(g) The certified financial statements provided for in Section 6.04(b) hereof for the quarter ending February 28, 2005.
(h) The certified report provided for in Section 6.04(i) hereof for the quarter ending February 28, 2005.
(i) An Affidavit confirming the execution and delivery of this Agreement and the Notes outside the State of Florida.
(j) Evidence of payment in full of all amounts outstanding under the Existing Credit Agreement.
(k) Such other documents as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. The amendments set forth in Section 2 This Amendment shall become effective when (A) the Agent shall have received (i) counterparts of this Amendment, Amendment duly executed by the joinder Borrower and each of the New Borrowers pursuant to Section 3 of this AmendmentLenders, (ii) the First Chicago Notes, duly executed by the Borrower, and (iii) each of the limited waiver set forth documents specified in Section 4 subsections (a) - (f) below (with all documents required below, except as otherwise specified, to be dated the date of this Amendmentreceipt thereof by the Agent, as well as any other terms and conditions set forth herein, which date shall be effective as the same for all such documents, each of the Effective Date, subject such documents to be in form and substance satisfactory to the satisfaction of Agent), and (B) the following conditions precedentcondition specified in subsection (g) below shall have been satisfied:
(a) The favorable written opinion by Rubin Baum Levin Constant Friedman & Bilzin, counsel for the Administrative Agent shall have received each of the followingBorrower, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇ ▇▇he Lenders ▇▇▇ LLP, counsel ▇▇ form and substance satisfactory to the New Borrowers,
Agent, and dated the Amendment Date, that (viiii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset this Amendment and the First Chicago Notes have been duly authorized, executed and delivered by the Borrower, (ii) this Amendment and the First Chicago Notes are enforceable in accordance with their respective terms, except as the rights and remedies of the New Borrowers,
Lenders or First Chicago thereunder may be limited by (ixA) true applicable bankruptcy, reorganization, insolvency and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretoother laws effecting creditors' rights generally from time to time in effect, and
(xB) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder exercise of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance discretionary powers of the Effective Date court before which any proceeding seeking equitable remedies (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act specific performance and any applicable “know your customer” rules and regulationsinjunctive relief) may be brought, and (yC) if such other qualifications expressed in the opinion, PROVIDED that such qualifications are acceptable to Agent; and (iii) nothing contained in this Amendment extinguishes, terminates or in any New Borrower qualifies as a “legal entity customer” way adversely affects the rights or remedies of the Lenders under the Beneficial Ownership RegulationSubsidiary Guarantees or the validity or enforceability thereof in accordance with their respective terms. Such counsel may rely, a Beneficial Ownership Certification in relation their opinion, on the opinions of special counsel to such New Borrower;
(cthe Borrower referred to in subsection 6(b) the Administrative Agent shall have received payment or evidence below, as to matters of payment by the Borrowers law of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.State of
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the Effective Datedate first above written when, subject to and only when, (A) the satisfaction Administrative Agent shall be satisfied with the corporate and legal structure and capitalization of each of (i) Dresser, Ltd., a corporation organized and existing under the laws of Bermuda, (ii) Dresser Holdings, Ltd., a corporation organized and existing under the laws of Bermuda, (iii) Delaware Intermediate HoldCo and (iv) Dresser Mergerco, Inc., including in each case the terms and conditions of the following conditions precedent:
charter, bylaws and other constituent documents and of each agreement or instrument relating to such structure and capitalization, and (aB) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the BorrowersBorrowers and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent, and the Lenders,Agent that such Lender has executed this Amendment;
(ii) amended and restated Notes, the consent attached hereto duly executed by the Borrowers,each Guarantor and each Grantor;
(iii) a joinder Guaranty Supplement in the form of Exhibit H to the Security Agreement, Credit Agreement duly executed by DEG Acquisitions;
(iv) an assumption agreement in form and substance satisfactory to the New BorrowersAdministrative Agent duly executed by Delaware Intermediate HoldCo with respect to the assumption by Delaware Intermediate HoldCo of all of the Obligations of DEG Acquisitions arising under the Loan Documents (including, without limitation, as Guarantor or Grantor thereunder), together with such stock powers or other agreements or instruments of transfer as evidence that all action the Administrative Agent may request deem necessary or desirable in order to perfect its Lien on any Collateral to and protect the extent required first priority lien and security interest created under the Security Agreement,
(iv) a certificate Collateral Documents in the assets of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,Delaware Intermediate HoldCo have been taken;
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect a merger agreement in form and substance satisfactory to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;the Merger, duly executed by each of the parties thereto; and
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an favorable opinion of TLatham & Watkins, United States counsel for the Loan Parties, ▇▇ ▇▇▇▇▇▇▇ P▇▇rm ▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel stance satisfactory to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofAgent.
Appears in 1 contract
Sources: Credit Agreement (Dresser Inc)
Conditions of Effectiveness. The amendments This Amendment and the amendment and restatement of the Credit Agreement as set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, 1 hereof shall be become effective as of the first date (such date being referred to as the “Restatement Effective Date, subject to the satisfaction ”) when each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received each of the followingthis Amendment, in form duly executed and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed delivered by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower Loan Parties and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certificationsMajority Lenders, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, each Revolving Credit Lender and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,Administrative Agent.
(vb) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the The Administrative Agent with respect to all insurance policies covering Collateral;
(vi) shall have received, on behalf of itself, the results of UCC Lien searches showing all financing statements other Agents, the Lenders and other documents or instruments on file against each New Borrower in the appropriate filing officesIssuing Bank, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T(i) ▇▇▇▇▇▇▇▇ P& ▇▇▇▇▇ LLP, special counsel for the Loan Parties, and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Street LLP, Kansas counsel for the Borrowers, in each case, dated the Restatement Effective Date and addressed to the Agents, the Issuing Bank and the Lenders, in each case in form and substance satisfactory to the Administrative Agent.
(c) Payment of all reasonable fees and expenses due to the Administrative Agent (as agreed to in writing between the Administrative Agent and the Parent Borrower) (including, without limitation, fees and reasonable out-of-pocket expenses of ▇▇▇▇▇▇ S▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the New Borrowers,Administrative Agent), in each case required to be paid on the Restatement Effective Date.
(viiid) a copy The Administrative Agent shall have received for the account of each Eligible Asset Lease Agreement for each Eligible Asset of Lender executing and delivering a Consent, a consent fee in an amount equal to 0.25% multiplied by such Lender’s aggregate principal amount of, without duplication, Loans and Commitments on the New Borrowers,Restatement Effective Date.
(ixe) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretoThe Administrative Agent shall have received with respect to each Mortgaged Property, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti“Life-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customerof-Loan” rules and regulations, Federal Emergency Management Agency standard flood hazard determination and (y) if any New improvements located on any Mortgaged Property are located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
and (cii) the Administrative Agent shall have received payment or evidence of payment by flood insurance satisfying the Borrowers requirements of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a8.03(c)(iv) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The amendments This Amendment shall become effective on the Business Day (the “Second Amendment Effective Date”) on which (x) Lender has received all of the documents and payments set forth in Section 2 below, and (y) Lender has delivered an executed counterpart of this Amendment, the joinder of the New Borrowers pursuant Amendment to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:Borrower.
(i) a counterpart two copies of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,Borrower;
(ii) amended and restated Notes, one copy of the Substitute Note executed by the Borrowers,Borrower;
(iii) two copies of a joinder to the Security Agreement, Confirmation and Amendment of Guarantor Documents executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as Guarantors (the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,“Confirmation”);
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer Secretary of each New Borrower certifying as (the “Borrower Secretary’s Certificate”) which shall certify (a) resolutions of the managers of Borrower evidencing approval of this Agreement and authorizing the execution and delivery of the same; (b) the names and true signatures of the officers of Borrower authorized to sign this Agreement; and (c) that there has been no change to the incumbency and genuineness Organizational Documents of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a truesince April 23, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,2015;
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 a certificate of the Credit Agreement with respect Secretary of each Guarantor (the “Guarantor Secretary’s Certificate”) which shall certify (a) resolutions of the managers of each Guarantor evidencing approval of the Confirmation and authorizing the execution and delivery of the same; (b) the names and true signatures of the officers of such Guarantor authorized to sign the Confirmation; and (c) that there has been no change to the New BorrowersOrganizational Documents of such Guarantor since April 23, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral2015;
(vi) certificates of good standing with respect to each Obligor from the results of UCC Lien searches showing all financing statements jurisdictions indicated on the Borrower Secretary’s Certificate and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,Guarantor Secretary’s Certificate; and
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies payment from Borrower of all Material Contractual Obligations described on Schedule 3.7 heretocosts and expenses incurred by Lender in connection with the drafting, and
(x) a duly completed Borrowing Base Reportnegotiation, calculating execution and implementation of this Amendment, the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers Confirmation and the other transactions contemplated by this Amendment;
(b) documents referred to herein. If and to the Lenders shall have extent Lender has not received at least five Business Days in advance the requisite number of originals of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties documents set forth in Section 7 hereof clauses (i) through (v) above on the Second Amendment Effective Date, Borrower shall cause such originals to be true and correct in all material respects as of the date hereofdelivered to Lender or its counsel within three Business Days thereafter.
Appears in 1 contract
Sources: Loan Agreement (PCI Media, Inc.)
Conditions of Effectiveness. The amendments set forth in (a) Section 2 1 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Amendment shall be become effective as of the date (the "Phase I Effective Date") when, subject to the satisfaction of and only when, on or before December 30, 1999 the following conditions precedentshall have been satisfied:
(ai) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the BorrowersExisting Borrowers and all of the Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent, and the Lenders,Agent that such Lender has executed this Amendment.
(ii) amended and restated NotesBefore giving effect to the transactions contemplated by this Amendment, executed by there shall have occurred no material adverse change in the Borrowers,business condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party, any of its Subsidiaries or Limited since September 30, 1999.
(iii) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a joinder Material Adverse Effect or (ii) purports to affect the Security legality, validity or enforceability of this Amendment, the Credit Agreement, executed by any Note, any other Loan Document, any Related Document or the New Borrowers, together with such stock powers or other agreements or instruments consummation of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,transactions contemplated hereby.
(iv) a certificate The Existing Borrowers shall have paid all invoiced fees and expenses of the secretary, assistant secretary or other Responsible Officer Administrative Agent and the Lender Parties (including the invoiced fees and expenses of each New Borrower certifying as counsel to the incumbency Administrative Agent and genuineness of local counsel to the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,Lender Parties).
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 The Administrative Agent on behalf of the Credit Agreement with respect Lender Parties shall have received on or before the effective date of this Amendment the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the New BorrowersLender Parties (unless otherwise specified) and in sufficient copies for each Lender Party:
(A) A consent in substantially the form of Exhibit B hereto, together with loss payable and lender endorsements by the Guarantors (as defined in the US Loan Party Guaranty) in favor of the Administrative Agent with respect under the US Loan Party Guaranty duly executed by each Guarantor party thereto, consenting to all insurance policies covering Collateral;the amendment contemplated by this Agreement.
(viB) A consent in substantially the results form of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower Exhibit C hereto, by the Guarantors (as defined in the appropriate filing offices, such searches to be as Non-US Loan Party Guaranty) in favor of a date acceptable to the Administrative Agent under the Non-US Loan Party Guaranty, duly executed by each Guarantor party thereto (other than Amdocs Japan Limited and reflecting no Liens against any Directory Technology Pty. Ltd.), consenting to the amendment contemplated by this Agreement.
(C) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under employee benefit plans, collective bargaining agreements and other arrangements with employees and forecasts prepared by management of the Property Borrowers, in form and substance satisfactory to the Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly basis for the New Borrower other than Permitted Liens,first year following the effective date of this Amendment and on an annual basis for each year thereafter until 2001.
(viiD) an A favorable opinion of TReboul, MacMurray, Hewi▇▇, ▇▇▇▇▇▇▇ P& ▇ristol, special New York counsel to the Existing Borrowers, in substantially the forms of Exhibit E-4 hereto, and to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(b) Section 2 of this Amendment shall become effective as of the date (the "Phase II Effective Date") when, and only when, on or before January 31, 2000 the following conditions shall have been satisfied: 9
(i) The Phase I Effective Date shall have occurred or occur simultaneously with the Phase II Effective Date, and the Administrative Agent shall have received counterparts of this Amendment executed by the Phase II New Borrowers.
(ii) Before giving effect to the transactions contemplated by this Amendment, there shall have occurred no material adverse change in the business condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party, any of its Subsidiaries or Limited since September 30, 1999.
(iii) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment, the Credit Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby.
(iv) The Borrowers shall have paid all accrued fees and expenses of the Administrative Agent and the Lender Parties (including the invoiced fees and expenses of counsel to the Administrative Agent and local counsel to the Lender Parties).
(v) The Administrative Agent on behalf of the Lender Parties shall have received on or before the effective date of this Amendment the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(A) The Notes of each Phase II New Borrower payable to the order of the Lenders.
(B) Certified copies of the resolutions of the Board of Directors or Executive Committee of each Phase II New Borrower approving this Amendment, the Credit Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Amendment, the Credit Agreement, the Notes, each other Loan Document and each Related Document.
(C) A certificate of each Phase II New Borrower, signed on behalf of such Phase II New Borrower by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Phase II Effective Date of this Amendment (the statements made in which certificate shall be true on and as of such date), certifying as to (A) a copy of the charter of such Borrower, (B) the due incorporation and good standing (where applicable) of such Borrower as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower, (C) the truth of the representations and warranties contained in the Loan 10 Documents as though made on and as of the Phase II Effective Date and (D) the absence of any event occurring and continuing, or resulting from the effectiveness of this Amendment, that constitutes a Default.
(D) A certificate of the Secretary or an Assistant Secretary of each Phase II New Borrower certifying the names and true signatures of the officers of such Person authorized to sign this Amendment, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(E) An assumption of guaranty in substantially the form of Exhibit A to the Non-US Loan Party Guaranty, duly executed by each of Amdocs Cyprus and Amdocs Ireland.
(F) A security agreement supplement in substantially the form of Exhibit A to the Security Agreement, duly executed by each of Amdocs Cyprus and Amdocs Ireland.
(1) A Deed of Charge dated the date of the Phase II Effective Date (the "Amdocs Cyprus Charge") made by Amdocs Cyprus in favor of the Administrative Agent, in substantially the form of Exhibit D-1 hereto and (2) and a Debenture dated the date of the Phase II Effective Date (the "Amdocs Cyprus Debenture") made by Amdocs Cyprus in favor of the Administrative Agent, in substantially the form of Exhibit D-2 hereto, in each case, duly executed by Amdocs Cyprus, together with evidence that all actions that may be necessary or desirable in order to perfect and protect the first priority liens, security interests and charges created by the Amdocs Cyprus Charge and the Amdocs Cyprus Debenture, respectively, have been taken.
(H) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under employee benefit plans, collective bargaining agreements and other arrangements with employees and forecasts prepared by management of the Existing Borrowers and the Phase II New Borrowers, in form and substance satisfactory to the Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the effective date of this Amendment and on an annual basis for each year thereafter until 2001.
(c) Section 3 of this Amendment shall become effective on the date (the "Phase III Effective Date") when, and only when, on or before January 31, 2000 the following conditions shall have been satisfied:
(i) The Phase II Effective Date shall have occurred or occur simultaneously with the Phase III Effective Date, and the Administrative Agent shall have received counterparts of this Amendment executed by Amdocs Hungary.
(ii) Before giving effect to the transactions contemplated by this Amendment, there shall have occurred no material adverse change in the business condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party, any of its Subsidiaries or Limited since September 30, 1999.
(iii) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment, the Credit Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby.
(iv) The Borrowers shall have paid all accrued fees and expenses of the Administrative Agent and the Lender Parties (including the invoiced fees and expenses of counsel to the Administrative Agent and local counsel to the Lender Parties).
(v) The Administrative Agent on behalf of the Lender Parties shall have received on or before the effective date of this Amendment the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(A) The Notes of Amdocs Hungary payable to the order of the Lenders.
(B) Certified copies of the resolutions of the Board of Directors or Executive Committee of Amdocs Hungary approving this Amendment, the Credit Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Amendment, the Credit Agreement, the Notes, each other Loan Document and each Related Document.
(C) A certificate of Amdocs Hungary, signed on behalf of it by its Managing Director and its Secretary or any Assistant Secretary, dated the Phase III effective Date of this Amendment (the statements made in which certificate shall be true on and as of such date), certifying as to (A) a copy of charter (or similar document) of such Borrower, (B) the due incorporation and good standing (where applicable) of such Borrower as a limited liability company organized under the 12 laws of the jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Phase III Effective Date and (D) the absence of any event occurring and continuing, or resulting from the effectiveness of this Amendment, that constitutes a Default.
(D) A certificate of the Secretary or an Assistant Secretary of Amdocs Hungary certifying the names and true signatures of the officers of such Person authorized to sign this Amendment, the Notes, each other Loan Document and each Related Document to which it is or is to be party and the other documents to be delivered hereunder and thereunder.
(E) An assumption of guaranty in substantially the form of Exhibit A to the Non-US Loan Party Guaranty, duly executed by Amdocs Hungary.
(F) A security agreement supplement in substantially the form of Exhibit A to the Security Agreement, duly executed by Amdocs Hungary.
(G) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under employee benefit plans, collective bargaining agreements and other arrangements with employees and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the effective date of this Amendment and on an annual basis for each year thereafter until 2001.
(H) A favorable opinion of the Law Offices of Dr. Pete▇ ▇▇▇oromi - Squire, Sand▇▇▇ & ▇emp▇▇▇, ▇.L.P., counsel for Amdocs Hungary, and Reboul, MacMurray, Hewi▇▇, ▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP& Kristol, special New York counsel to the New Borrowers,
(viii) a copy , in substantially the forms of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true Exhibits E-3 and correct copies of all Material Contractual Obligations described on Schedule 3.7 E-4 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) other matters as any Lender Party through the Administrative Agent shall have received payment may reasonably request.
(I) Certified copies of each filing made or evidence of payment by to be made (together with an English language translation thereto) in connection with the Borrowers attachment and perfection of the costs security interests and expenses referred Liens granted, pledged and assigned by Amdocs Hungary under Loan Documents, together with original, execution copies of powers of attorney in form and substance satisfactory to the Administrative Agent authorizing the execution of any such filing required by Hungarian law to be made after the Phase III Effective Date duly executed by Amdocs Hungary and any other Loan Party that is to be a signatory to such filing. This Amendment is subject to the provisions of Section 12.3 8.01 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.Credit
Appears in 1 contract
Sources: Credit Agreement (Amdocs LTD)
Conditions of Effectiveness. The amendments set forth in This Amendment is subject to the provisions of Section 2 of this Amendment, the joinder 10.01 of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Existing Credit Agreement. This Amendment shall be become effective as of the date first above written when, and only when (the “Amendment No. 3 Effective Date”), subject each of the following conditions shall have been fulfilled to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) a counterpart All accrued costs and expenses and fees of the Administrative Agent in connection with the administration of the Existing Credit Agreement and the preparation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder and under the Loan Documents (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent and the Lead Arranger) shall have been paid by the Borrowers;
(b) The Administrative Agent shall have received counterparts of this Amendment executed by the Borrowers, the Administrative Agent, Borrower and the Lenders,
(ii) amended and restated NotesRequired Lenders or, executed by the Borrowers,
(iii) a joinder as to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretaryLenders, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable advice satisfactory to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by that such Lender has executed this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the The Administrative Agent shall have received payment or evidence of payment by the Borrowers counterparts of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;consent attached hereto executed by each Guarantor.
(d) no Default The Administrative Agent shall have received a certificate signed by a duly authorized officer of the Borrowers stating that:
(i) The representations and warranties contained in the Loan Documents and in Section 4 hereof are correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effectsuch certificate; and
(ii) No event has occurred and is continuing that constitutes a Default.
(e) the representations and warranties set forth The amendment fee referred to in Section 7 2 hereof shall be true and correct in all material respects as of have been paid by the date hereofBorrowers.
Appears in 1 contract
Sources: Senior Secured Superpriority Debtor in Possession Credit Agreement (Quebecor World Inc)
Conditions of Effectiveness. The amendments set forth in Section 2 This Agreement shall become effective when the Administrative Agent shall have received counterparts of this Amendment, Agreement executed by the joinder of Company and (unless the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective Co-Borrower Termination Conditions have been satisfied as of the Effective Closing Date) the Co-Borrower and by each of the Lenders; provided, subject however, that the Lenders shall not be required to make any Advance hereunder nor shall the Issuer be required to issue any Facility Letter of Credit hereunder, unless and until (i) the Administrative Agent shall have received the fees provided to be paid pursuant to the satisfaction of the following conditions precedent:
Fee Letters and (aii) the Administrative Agent shall have received each of the followingfollowing items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance reasonably satisfactory to the Administrative Agent, be fully and properly executed by all parties thereto, and (except for the Notes) to be in sufficient copies for each Lender), and the conditions specified below shall have been satisfied:
(a) A Facility A Note payable to the order of the Administrative Agent and a Facility A Note payable to the order of each Facility A Lender that shall have requested a Facility A Note in accordance with this Agreement; the Swing Line Note payable to the order of the Swing Line Bank; a Facility B Revolver Note and a Facility B Term Note payable to the order of the Administrative Agent and a Facility B Revolver Note and Facility B Term Note payable to the order of each of the Facility B Lenders that shall have requested such Notes in accordance with this Agreement; and (except as otherwise provided in subsection (s) below), a Facility C Note payable to the order of the Administrative Agent and a Facility C Note payable to the order of each of the Facility C Lenders that shall have requested a Facility C Note in accordance with this Agreement.
(b) A Guaranty from each Subsidiary of the Company, except (i) a counterpart of this Amendment for the Mortgage Banking Subsidiaries and the Subsidiaries listed in Schedule VII hereto and (ii) as otherwise provided in subsection (s) below.
(c) The Pledge Agreements executed by the BorrowersCompany and each of the Guarantors that owns Capital Stock or other equity interests in any Significant Subsidiary and such other Subsidiaries as may be required pursuant to Section 8.01(a)(ii), pledging the Capital Stock of such Subsidiaries (including, but only if the Co-Borrower Termination Conditions are satisfied as of the Closing Date, the Co-Borrower Subsidiaries that are Significant Subsidiaries) together with such stock certificates and other documents provided to be delivered pursuant to the Pledge Agreements and the Collateral Trust Agreement provided for in Section 8.03(a).
(d) The favorable written opinions addressed to the Lenders, and in form and substance satisfactory to the Administrative Agent, from (i) Bilzin Sumberg Dunn, Price & Axelrod, LLP, counsel to the Company, (A) con▇▇▇▇▇▇▇ ▇▇▇ accuracy o▇ ▇▇▇ ▇epresentations and warranties set forth in Sections 4.01 (excluding clause (b) thereof, and limited, in the case of clause (a) thereof, to the jurisdictions listed under the heading "Where Qualified" in Schedule VI hereto), 4.02, 4.06, 4.11, 4.12, 4.24, the second sentence of Section 4.08 hereof, the last sentence of Section 4.14, and the Lenders,
second and third sentences of Section 4.22 hereof (ii) amended and restated Noteswhich opinion, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency representations set forth in clauses (b)(ii), (c) and genuineness (d) of Sections 4.02, 4.06, 4.11, 4.12, the signature second sentence of each officer Section 4.08, and clauses (b)(ii), (c) and (d) of Section 4.22 hereof, may be to the best knowledge of such New Borrower executing the Loan Documents to which it is a party counsel), and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority may in its jurisdiction of formationentirety be limited to Florida, Arizona, Delaware, Texas, California, Nevada, New York, Colorado and United States federal law); (B) to the bylaws or comparable organizational documents of such New Borrower as in effect on that this Agreement, the date of such certificationsNotes, the Guaranties and the other Loan Documents have been duly authorized, executed and delivered by the applicable Loan Parties; (C) resolutions duly adopted that no authorization, consent, approval, license or exemption of, or filing nor registration with or other action by any New York, United States federal or Delaware governmental department, commission, board, bureau, regulatory body, agency or instrumentality or to the board of directors or comparable governing body best knowledge of such New Borrower authorizing counsel, any court is or will be necessary for the execution, delivery and performance by any applicable Loan Party of this Amendment Agreement, the Notes, the Guaranties and the other Loan Documents (as applicable); and (D) this Agreement, the Notes, the Guaranties and the other Loan Documents constitute the legal, valid and binding obligations of the applicable Loan Parties, enforceable in accordance with their respective terms, except as the rights and remedies of the Lenders thereunder may be limited by (1) applicable bankruptcy, reorganization, insolvency and other laws effecting creditors' rights generally from time to time in effect, (2) the exercise of the discretionary powers of the court before which any proceeding seeking equitable remedies (including, without limitation, specific performance and injunctive relief) may be brought, and (3) such other qualifications expressed in the opinion, provided that such qualifications are acceptable to Administrative Agent, and (ii) from Clifford Chance Rogers & Wells, counsel for the Company, that neith▇▇ ▇▇▇ ▇xecution ▇▇▇ ▇eli▇▇▇▇ of the Merger Agreement by the Persons party thereto, nor their consummation of the Merger, nor the execution and delivery by the Company and (if applicable) the Co-Borrower of this Agreement and the Notes, and by each of the Loan Parties of the Guaranties, the Lennar Guaranty (if applicable) and the other Loan Documents to which such Loan Party is a party nor the performance by the Loan Parties of their obligations hereunder or thereunder violate, conflict with or result in a breach of or constitute (with or without the giving of notice or the passage of time or both) a default under any indenture pursuant to which any debt Securities of the Company or the Existing U.S. Home Debt Issues were issued. The opinion provided for in clause (i) above may rely on, or, if to the extent approved by the Administrative Agent, there shall be furnished to the Administrative Agent in lieu of (but solely with respect to the matters described below) the opinion described in clause (i) above, the following opinions, each of which shall also be addressed to the Lenders and in form and substance satisfactory to the Administrative Agent: the opinion of Fennemore, Craig as to matters of law of the State of Arizona, the ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇nger & DeWolf, P.C. as to matters of law of the State of Texas, ▇▇▇ ▇▇▇nio▇ ▇▇ ▇almieri, Tyler, Wiener, Wilhelm & Waldron LLP as to matters of law of the State of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ op▇▇▇▇▇ ▇f Brownstein, Hyatt & Farber, P.C., as to matters of law of the State ▇▇ ▇▇▇▇▇▇do, and th▇ ▇▇▇▇ion (as approved by the Administrative Agent) of Kaye Scholer Fierman Hays & Handler LLP, counsel to U.S. Home, or S▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇e ▇▇▇ector-Legal of U.S. Home (or both), with ▇▇▇▇▇▇▇ ▇▇ matters relating to U.S. Home and its Subsidiaries (except that Subsidiaries of U.S. Home incorporated or doing business in the State of Colorado shall be addressed in the opinion of Colorado counsel). The Company hereby instructs such counsel to prepare their opinions and deliver such opinions to the Lenders for the benefit of the Lenders, and such opinions shall contain a statement to such effect.
(e) The following supporting documents with respect to each Loan Party: (i) a copy of its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date (except that, with respect to the Company and Len Acquisition, such certificate shall be as of the Closing Date) to be a true and accurate copy by the Secretary of State of its state of incorporation or formation; (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date (except that, with respect to the Company and Len Acquisition, such certificate shall be as of the Closing Date), as to its existence and (if available) good standing; (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation or formation, in which it does business, as to its qualification as a foreign corporation, limited partnership or limited liability company; (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date; (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement, the Notes, the Guaranties and the other Loan Documents to which it is a party, party and the performance by it of all its obligations thereunder; and (Dvii) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement additional supporting documents and other information with respect to the New Borrowers, together with loss payable its operations and lender endorsements in favor of affairs as the Administrative Agent with respect to all insurance policies covering Collateral;may reasonably request.
(vif) Certificates signed by a duly authorized officer of the Company and a duly authorized officer of the Co-Borrower (as applicable) stating that: (i) the results representations and warranties of UCC Lien searches showing all financing statements the Company and other documents or instruments the Co-Borrower (as applicable) contained in Article IV hereof are correct and accurate on file against each New Borrower in the appropriate filing offices, such searches to be and as of the Closing Date as though made on and as of the Closing Date and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default hereunder.
(g) The Borrowing Base report effective as of April 30, 2000, as required pursuant to Section 6.04(l), prepared on a date acceptable pro forma basis as if the Merger had occurred on such date.
(h) The Intercreditor Agreement duly executed by all parties thereto, provided, however, that, if the lenders to UAMC have not executed the Intercreditor Agreement as of the Closing Date, the Intercreditor Agreement shall be delivered not later than 30 days after the Closing Date.
(i) Evidence satisfactory to the Administrative Agent and reflecting no Liens against the Syndication Agent that there shall not have occurred any changes in the consolidated financial condition or results of operations or cash flows of the Property Loan Parties from that reflected in the Pro Forma Financial Statements which has or reasonably could be expected to have, in the judgment of the New Borrower other than Permitted Liens,Administrative Agent and Syndication Agent, a Material Adverse Effect.
(viij) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel Evidence satisfactory to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers Administrative Agent and the Syndication Agent that, simultaneously with the initial Advance hereunder, the Merger and all other transactions contemplated by this Amendment;the Merger Documents to take place on the consummation of the Merger shall have occurred and been lawfully consummated to the satisfaction of the Administrative Agent and the Syndication Agent.
(bk) Evidence satisfactory to the Lenders Administrative Agent and the Syndication Agent that the Borrower shall not have entered into or agreed to any amendment or modification of the Merger Agreement, or waived or released any material rights or benefits of the Company or Len Acquisition thereunder, in each case without the prior written consent of the Administrative Agent or the Required Lenders.
(l) A certificate signed by an Authorized Financial Officer of the Company showing in reasonable detail the calculations used to determine the Leverage Ratio for the Pricing Grid.
(m) Pro forma consolidated balance sheet of the Company and its Subsidiaries effective as of April 30, 2000, and assuming all of the following transactions had occurred as of such dates: the effectiveness of the Merger, the effectiveness of this Agreement, and the funding of the initial Advances hereunder.
(n) A report, in reasonable detail and in form and substance satisfactory to the Administrative Agent, with calculations indicating that the Loan Parties, on a pro forma basis effective as of April 30, 2000 (including the accounts of U.S. Home effective as of April 30, 2000) would have been in compliance with the provisions of Article VII (if this Agreement had been in effect as of such dates), which calculations shall be based upon the Pro Forma Financial Statements after making the assumptions referred to in Section 5.01(m) above.
(o) Evidence satisfactory to the Administrative Agent and the Syndication Agent that, simultaneously with the initial Advance hereunder, the Borrower shall have received proceeds of unsecured debt Securities or of the Bridge Loan in an amount equal to at least five Business Days $300,000,000, all on terms and conditions satisfactory to the Administrative Agent and the Syndication Agent.
(p) Evidence satisfactory to the Administrative Agent and the Syndication Agent that the $80,000,000 secured revolving credit facility of USHMC that matures September 30, 2001 shall remain available for borrowing by USHMC in advance that amount and any default or termination right that results or would result from the Merger shall have been waived by the holders of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, Indebtedness thereunder or otherwise eliminated to the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) satisfaction of the Administrative Agent and Syndication Agent or alternatively the Administrative Agent and the Syndication Agent shall have received payment evidence satisfactory to them that such facility has been replaced with a non-recourse revolving credit facility of at least such amount and on terms and with lenders satisfactory to the Administrative Agent and Syndication Agent.
(q) Evidence satisfactory to the Administrative Agent and the Syndication Agent that the $315,000,000 secured revolving credit facility of UAMC that matured April 28, 2000, has been extended or evidence replaced in the amount of payment $225,000,000, on terms and with lenders satisfactory to the Administrative Agent and the Syndication Agent.
(r) Evidence satisfactory to the Administrative Agent that, simultaneously with the initial Advance hereunder, all obligations of the Company and U.S. Home under the loan facilities described in Schedule IX hereto have been paid in full.
(s) If the Co-Borrower Termination Conditions are not satisfied on or before the Closing Date, then there shall not be delivered as a condition under this Section 5.01 the Facility C Notes of the Company, Guaranties by the Borrowers Co-Borrower Subsidiaries or Pledge Agreements with respect to any Capital Stock or other equity interests in the Co-Borrower Subsidiaries but there shall be delivered as a condition under this Section 5.01 all of the costs and expenses referred in Section 12.3 following: (i) a Co-Borrower Facility A Note payable to the order of the Credit Agreement, Administrative Agent and a Co-Borrower Facility A Note payable to the extent invoiced on or prior order of each of the Facility A Lenders that shall have requested a Co-Borrower Facility A Note in accordance with this Agreement; (ii) a Co-Borrower Facility C Note payable to the date hereof;
(d) no Default (other than order of the Specified Default) Administrative Agent and a Co-Borrower Facility C Note payable to the order of each of the Facility C Lenders that shall have occurred requested a Co-Borrower Facility C Note in accordance with this Agreement; (iii) the Lennar Guaranty, (iv) pledge agreements (the "Co-Borrower Pledge Agreements") executed by the Co-Borrower and be continuing, and since the effective date by each of the most recent financial statements delivered pursuant to Section 7.1(a) of Co-Borrower Subsidiaries that holds Capital Stock or other equity interests in any other Co-Borrower Subsidiary pledging the Credit Agreement, no event or circumstance exists that, either individually or Capital Stock and other equity interests in the aggregateCo-Borrower Subsidiaries as security for the Merger Loan, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) substantially in the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as form of the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, This Amendment shall become effective (the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the “Amendment No. 1 Effective Date, subject to the satisfaction of ”) when the following conditions precedent:shall have been satisfied (or waived by the New Term A Lenders in the case of Section 2(a) or by the Required Lenders in the case of Section 2(b)):
(a) In the case of all Sections of this Amendment other than Section 1(d) hereof:
(i) the Administrative Agent shall have received each of receives the following, each of which shall be originals or facsimiles (or other electronic imaging means) unless otherwise specified, each dated the Amendment No. 1 Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment No. 1 Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(ia) a counterpart of this Amendment executed signed by the Borrowers, each of the Administrative Agent, the Borrower and the Lenders,each New Term A Lender;
(iib) amended and restated Notes, executed a certificate of the Borrower signed by a Responsible Officer of the Borrowers,Borrower in accordance with Section 2.14(b) of the Credit Agreement relating to the New Term A Commitments;
(iiic) a joinder copies (certified, to the Security Agreementextent applicable) of UCC, executed by United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches (other than for Franklin County, Ohio) or equivalent reports or searches, each of a recent date before the New BorrowersAmendment No. 1 Effective Date listing all effective financing statements, together with lien notices or comparable documents that name any Loan Party as debtor (other than a Louisiana entity) and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business;
(d) such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to require evidencing the extent required under the Security Agreement,
(iv) a certificate identity, authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying thereof authorized to act as to a Responsible Officer in connection with this Amendment, the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment Credit Agreement and the other Loan Documents to which it such Loan Party is a party or is to be a party, ;
(e) such documents and (D) certificates certifications as of a recent date of the Administrative Agent may reasonably require to evidence that each Loan Party is in good standing or active status, as applicable, of such New Borrower under the laws of in its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect incorporation or formation, except to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect extent that failure to all insurance policies covering Collateraldo so could not reasonably be expected to have a Material Adverse Effect;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(viif) an opinion of T▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ P& ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of Loan Parties, addressed to the Administrative Agent and the New Borrowers,
(ix) true Term A Lenders, in form and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect substance reasonably satisfactory to the joinder of the Administrative Agent (which shall cover New Borrowers York law and the other transactions contemplated by this AmendmentGeneral Corporation Law, Limited Liability Company Act and Revised Uniform Limited Partnership Act of Delaware);
(bg) an opinion of local counsel to the Lenders shall have received at least five Business Days Loan Parties in advance of Ohio, addressed to the Effective Date (x) all documentation Administrative Agent and other information that is required by regulatory authorities under Anti-Money Laundering Lawsthe New Term A Lenders, including, without limitation, in form and substance reasonably satisfactory to the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerAdministrative Agent;
(ch) the Administrative Agent shall have received payment or evidence of payment a certificate signed by the Borrowers a Responsible Officer of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, Borrower certifying that there has been no event or circumstance exists thatsince December 31, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect;
(i) a certificate attesting to the Solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis before and after giving effect to the transactions contemplated by this Amendment and the incurrence of Indebtedness related thereto, from the Borrower’s chief financial officer in form and substance reasonably satisfactory to the Administrative Agent; and
(ej) such other certificates (but excluding insurance certificates) or documents as the representations Administrative Agent reasonably may require.
(b) In the case of Section 1(d) of this Amendment, immediately after the effectiveness of Section 1(c) of this Amendment and warranties set forth when the Administrative Agent receives a counterpart of this Amendment signed by each of the Administrative Agent and Borrower and consents in the form of Exhibit A hereto (the “Consent”) or otherwise acceptable to the Administrative Agent signed by the Required Lenders (after giving effect to Section 7 hereof 1(c)). Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ that has signed this Amendment (or the Consent that is part hereof) shall be true 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 Amendment No. 1 Effective Date specifying its objection thereto and correct the Required Lenders (as defined in the Credit Agreement) signatures hereto shall be binding on all material respects as of the date hereofLenders.
Appears in 1 contract
Sources: Credit Agreement (Wendy's Co)
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, Amendment (the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the “Amendment No. 1 Effective Date, ”) is subject to the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrower, the Lenders (including the Departing Lenders), the Issuing Bank and the Administrative Agent.
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 1 Effective Date) of (i) Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New Jersey counsel for the Borrower and (ii) Weil, Gotshal & ▇▇▇▇▇▇ LLP, special New York counsel for the Borrower, each covering such matters relating to the Borrower, this Amendment or the Credit Agreement as amended hereby as the Administrative Agent shall reasonably request (and the Borrower hereby instructs such counsels to deliver such opinions to the Lenders and the Administrative Agent).
(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 the followingBorrower, the authorization of this Amendment and the Credit Agreement as amended hereby, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent:Agent and its counsel.
(id) The Administrative Agent shall have received a counterpart certificate, dated the Amendment No. 1 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 clauses (a) and (b) of the first sentence of Section 4.02 of the Credit Agreement (excluding, however, the first parenthetical clause in such clause (a)).
(e) The Administrative Agent shall have received, for the account of each Lender (excluding any Departing Lender) party hereto that delivers its executed signature page to this Amendment executed by no later than the Borrowers, date and time specified by the Administrative Agent, and an upfront fee in an amount equal to the amount previously disclosed to the Lenders,.
(iif) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the The Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including the reasonable fees and expenses referred in Section 12.3 of the Credit AgreementSidley Austin LLP, counsel to the extent invoiced Administrative Agent, that are due and payable on or prior to the date hereof;
(dAmendment No. 1 Effective Date and for which an invoice has been presented to the Borrower at least one Business Day prior to the Amendment No. 1 Effective Date) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofconnection with this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Bard C R Inc /Nj/)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the Effective Datedate first above written when, subject to and only when, (A) the satisfaction Administrative Agent shall be satisfied with the corporate and legal structure and capitalization of each of (i) Dresser, Ltd., a corporation organized and existing under the laws of Bermuda, (ii) Dresser Holdings, Ltd., a corporation organized and existing under the laws of Bermuda, (iii) Delaware Intermediate HoldCo and (iv) Dresser Mergerco, Inc., including in each case the terms and conditions of the following conditions precedent:
charter, bylaws and other constituent documents and of each agreement or instrument relating to such structure and capitalization, and (aB) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the BorrowersBorrowers and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent, and the Lenders,Agent that such Lender has executed this Amendment;
(ii) amended and restated Notes, the consent attached hereto duly executed by the Borrowers,each Guarantor and each Grantor;
(iii) a joinder Guaranty Supplement in the form of Exhibit H to the Security Agreement, Credit Agreement duly executed by DEG Acquisitions;
(iv) an assumption agreement in form and substance satisfactory to the New BorrowersAdministrative Agent duly executed by Delaware Intermediate HoldCo with respect to the assumption by Delaware Intermediate HoldCo of all of the Obligations of DEG Acquisitions arising under the Loan Documents (including, without limitation, as Guarantor or Grantor thereunder), together with such stock powers or other agreements or instruments of transfer as evidence that all action the Administrative Agent may request deem necessary or desirable in order to perfect its Lien on any Collateral to and protect the extent required first priority lien and security interest created under the Security Agreement,
(iv) a certificate Collateral Documents in the assets of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,Delaware Intermediate HoldCo have been taken;
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect a merger agreement in form and substance satisfactory to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;the Merger, duly executed by each of the parties thereto; and
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an favorable opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, United States counsel for the Loan Parties, in form and substance satisfactory to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofAgent.
Appears in 1 contract
Sources: Credit Agreement (Dresser Inc)
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Amendment is subject to the satisfaction of the following conditions precedentprecedent that the Administrative Agent shall have:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment duly executed by the BorrowersBorrower, the Required Lenders (and any other Lenders required by Section 11.1 of the Credit Agreement), and the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, Credit Documents Reaffirmation attached hereto as Exhibit A duly executed by the Borrowers,Credit Parties;
(iiib) received a joinder to fully executed and effective copy of the Security Agreement, Agreement executed by the New Borrowers, together with such stock powers or other agreements or instruments Credit Parties and the Administrative Agent;
(c) received from the Borrower for the benefit of transfer as each Lender that executes and delivers its signature page hereto to the Administrative Agent may request by facsimile or e-mail transmission (and with receipt thereof determined by the Administrative Agent in its sole discretion) no later than 4:00 p.m. Chicago time on August 12, 2010 (the “Consent Deadline”) and elects (by affirmatively making such election on its signature page hereto) to perfect its Lien on be treated as a Class A Revolving Lender by the Consent Deadline, an amendment fee equal to 0.75% times such Lender’s Class A Revolving Commitment after giving effect to the terms of this Amendment (with no such fee being paid to any Collateral Class B Revolving Lender);
(d) received from the Borrower, payment and/or reimbursement of the Administrative Agent’s fees as required by the Credit Agreement, as well as those fees payable pursuant to that certain fee letter delivered in connection with this Amendment between the Borrower and the Administrative Agent, and to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as invoiced prior to the incumbency date hereof, reasonable out-of-pocket expenses (including reasonable legal fees and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (Aexpenses) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering CollateralAmendment;
(vie) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of received a date acceptable favorable written opinion (addressed to the Administrative Agent and reflecting no Liens against any the Lenders and dated the Amendment No. 1 Closing Date) of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P& ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel for the Credit Parties, covering such other matters relating to the New Borrowers,
Credit Documents (viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and Credit Agreement (yas amended by this Amendment)) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effectrequest; and
(ef) received those agreements, documents, instruments and other deliverables identified in the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects Amendment No. 1 List of Closing Documents attached hereto as of the date hereof.Exhibit B.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, This Seventh Amendment will become effective on the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction date on which each of the following conditions precedent:precedent are satisfied or waived (the “Seventh Amendment Effective Date”):
(a) the The Administrative Agent shall have received from PEI, the Borrower, the General Partner, the Parent, each of other Obligor and the followingLenders, counterparts (in form and substance reasonably satisfactory to such number as may be requested by the Administrative Agent:) of this Seventh Amendment signed on behalf of such Person.
(ib) a counterpart of this Amendment executed by the Borrowers, the The Administrative Agent, Agent and the Lenders,
(ii) amended Lenders shall have received all fees and restated Notes, executed by the Borrowers,
(iii) a joinder other amounts due and payable on or prior to the Security AgreementSeventh Amendment Effective Date, executed by the New Borrowersincluding, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary to be reimbursed or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date paid by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents pursuant to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect (including, to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents extent invoiced on or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable prior to the Administrative Agent Seventh Amendment Effective Date, the fees and reflecting no Liens against any expenses of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;Administrative Agent).
(c) No Default or Event of Default shall have occurred and be continuing as of the Seventh Amendment Effective Date.
(d) The Administrative Agent shall have received, together with title information previously delivered to the Administrative Agent, satisfactory title information on at least 80% of the total value of the Oil and Gas Properties of the Borrower and the Subsidiaries evaluated by the most recently delivered Reserve Report.
(e) The Administrative Agent shall have received payment duly executed and notarized deeds of trust and/or mortgages or evidence supplements to existing deeds of payment by trust and/or mortgages in form satisfactory to the Borrowers of the costs and expenses referred in Section 12.3 of the Credit AgreementAdministrative Agent, to the extent invoiced on or prior to necessary so that the date hereof;Mortgaged Properties represent at least 80% of the total value of the Oil and Gas Properties of the Borrower and the Subsidiaries evaluated by the most recently delivered Reserve Report.
(df) no Default (other than the Specified Default) The Administrative Agent shall have occurred received such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this Seventh Amendment to be continuing, and since effective when it has received documents confirming compliance with the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties conditions set forth in this Section 7 hereof 4 or the waiver of such conditions as agreed to by the Majority Lenders. Such declaration shall be true final, conclusive and correct in binding upon all material respects as of parties to the date hereofCredit Agreement for all purposes.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this First Amendment (including the amendments set forth contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, 1 and the limited waiver set forth agreements contained in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, 2) are subject to the satisfaction (or written waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) the The Administrative Agent shall have received each duly executed and delivered counterparts of this First Amendment that, when taken together, bear the signatures of the followingBorrower, the Required Lenders, all Term Lenders (after giving effect to the replacement of any Non-Consenting Term Lenders by the Replacement Lender) and all Subsidiary Guarantors;
(b) The Administrative Agent shall have received a customary written opinion (with respect to the Borrower only) (addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated the First Amendment Effective Date) of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special California, Delaware and New York counsel for the Borrower. The Borrower hereby requests such counsel to deliver such opinions;
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in paragraphs (f) and (g) of this Section 3;
(d) The Administrative Agent shall have received a certificate dated as of the First Amendment Effective Date of the secretary or an assistant secretary or director (or such other officer reasonably acceptable to the Administrative Agent) of the Borrower in form and substance reasonably satisfactory to the Administrative Agent:
, certifying (i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
that either (iiA) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct true and complete and up to date copy of (A) the articles of incorporation or comparable organizational documents of Organizational Documents for such New Borrower and all amendments theretoPerson, certified as of a recent date by the appropriate Governmental Authority in of its jurisdiction of formationorganization (where applicable), and that the same has not been amended since the date of such certification or (B) the bylaws or comparable organizational documents Organizational Documents of such New Borrower as in effect Person delivered on the date of such certificationsClosing Date to the Administrative Agent have not been amended and are in full force and effect, (Cii) that attached thereto is a true and complete copy of resolutions duly or other action adopted by the board of directors (or comparable other governing body body) or bodies of such New Borrower Person authorizing and approving the execution, delivery and performance of this First Amendment and the other any related Loan Documents to which it is a party, which are in full force and effect without amendment or supersession as of the date of the certificate, and (Diii) certificates either (A) as to the incumbency and genuineness of the signatures of each Responsible Officer of such Person executing this First Amendment or any of such other Loan Documents or (B) that each of the Persons identified to the Administrative Agent on the Closing Date as a duly elected and qualified officer of the Borrower continues to be a duly elected and qualified officer of the Borrower and each such Person is duly authorized to execute and deliver on behalf of the Borrower the First Amendment and any other Loan Documents, and attaching all such copies of the documents described above;
(e) The Administrative Agent shall have received a certificate as of a recent date of the good standing or active status, as applicable, of such New the Borrower under the laws of its jurisdiction of organization,
, from the appropriate Governmental Authority of such jurisdiction (v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements where available in favor of the Administrative Agent with respect to all insurance policies covering Collateralsuch jurisdiction);
(vif) the results No Default or Event of UCC Lien searches showing all financing statements Default has occurred and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent is continuing both before and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date immediately after giving effect to the joinder transactions contemplated hereby;
(g) The representations and warranties of the New Borrowers Borrower and each of the Guarantors set forth in Section 4 of this First Amendment are true and correct;
(h) All fees and expenses required to be paid (x) in connection with this First Amendment pursuant to Section 10.04 of the Credit Agreement or (y) pursuant to that certain engagement letter, dated as of September 26, 2017 (the “Engagement Letter”), by and among the Borrower and the Arrangers and that certain fee letter referred to in the Engagement Letter shall have been paid in full in cash or will be paid in full in cash on the First Amendment Effective Date;
(i) The Replacement Lender, if any, shall have executed and delivered the Master Assignment contemplated by Section 2 above and all conditions to the consummation of the assignments in accordance with Section 2 above shall have been satisfied and such assignments shall have been consummated.
(j) The Borrower shall have, substantially concurrently with the effectiveness of this First Amendment, paid to all (x) Non-Consenting Term Lenders all accrued interest, fees and other Obligations (other than principal and all other amounts paid to such Non-Consenting Term Lenders under Section 2 above), if any, to such Non-Consenting Term Lenders under the Credit Agreement and the other transactions contemplated by Loan Documents (immediately prior to the effectiveness of this First Amendment;) and (y) Consenting Term Lenders all accrued interest to such Consenting Term Lenders under the Credit Agreement (immediately prior to the effectiveness of this First Amendment); and
(bk) the Lenders The Administrative Agent shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by bank regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under including the Beneficial Ownership RegulationPatriot Act, a Beneficial Ownership Certification in relation to such New Borrower;
(c) that has been requested by the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or at least three Business Days prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofFirst Amendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the Effective Date, subject to the satisfaction first date on which each of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received either (A) counterparts of this Amendment duly executed by each of the Loan Parties, the Required Lenders, each Lender with a Term Loan Commitment that is being increased pursuant to this Amendment and the Administrative Agent or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of an executed signature page of this Amendment) that such parties have executed counterparts of this Amendment.
(b) The Administrative Agent (or its counsel) shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of each of (i) F▇▇▇▇ & L▇▇▇▇▇▇ LLP, special counsel for the followingLoan Parties, (ii) A▇▇▇▇▇ ▇▇▇, special Irish counsel for the Loan Parties and (iii) A▇▇▇▇ & O▇▇▇▇, Société en Commandite Simple, inscrite au barreau de Luxembourg, special Luxembourg counsel for the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of Agent and its counsel and covering such matters relating to the Loan Parties, this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer Amended Loan Agreement as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request to perfect its Lien on any Collateral relating to the extent required under organization, existence and good standing (or the Security Agreement,
(ivequivalent) a certificate of the secretaryLoan Parties, assistant secretary or the authorization of this Amendment, the Amended Loan Agreement and any other Responsible Officer of each New Borrower certifying as legal matters relating to the incumbency and genuineness of Loan Parties, the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Amended Loan Documents to which it is a partyAgreement, all in form and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable substance reasonably satisfactory to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,its counsel.
(viid) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders The Administrative Agent shall have received at least five Business Days for the account of each Term Lender that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent (in advance consultation with the Borrower), an upfront fee in respect of the Effective Date incremental portion of its increased Term Loan Commitment in an amount equal to the applicable amount previously disclosed to the Term Lenders (x) all documentation and other information that is required established by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under Administrative Agent in consultation with the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;).
(ce) the The Administrative Agent shall have received payment or evidence of payment by the Borrowers and/or reimbursement of the costs Administrative Agent’s and its affiliates’ fees and expenses referred (including the reasonable, documented and invoiced fees, disbursements and other charges of one primary counsel (and one additional local counsel in Section 12.3 of each applicable jurisdiction) for the Credit AgreementAdministrative Agent) in accordance with the Loan Documents, to the extent invoiced on or (in reasonable detail) to the Borrower at least one (1) Business Day prior to the date hereof;
(d) no Default (other than Amendment Effective Date. The Administrative Agent shall notify the Specified Default) shall have occurred Borrower and be continuingthe Lenders of the Amendment Effective Date, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof such notice shall be true conclusive and correct in all material respects as of the date hereofbinding.
Appears in 1 contract
Sources: Loan Agreement (PENTAIR PLC)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the date (the “Effective Date, subject to the satisfaction of ”) on which the following conditions precedent:shall have been satisfied (or waived):
(a) the The Administrative Agent Agents shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the Borrowers, the Administrative AgentLenders and any Increasing Lenders on, and or prior to, 12:00 p.m., New York City time on February 15, 2013 (the Lenders,“Consent Deadline”);
(iib) amended and restated Notes, executed by the Borrowers,
(iii) a joinder After giving effect to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a partytransactions contemplated hereby, the representations and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 warranties set forth in Article 5 of the Credit Agreement (as amended by this Amendment) are true and correct in all material respects as of the Effective Date, with respect the same effect as though made on and as of such date, except to the New Borrowersextent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and immediately prior to and after giving effect to the Effective Date, together with loss payable no Default or Event of Default shall have occurred and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateralbe continuing;
(vic) Immediately prior to, and after giving effect to this Amendment, the results of UCC Lien searches showing all financing statements Commitment Increase pursuant to Section 2 and other documents or instruments any transaction consummated in connection therewith, the Senior Secured Leverage Ratio shall be no greater, calculated on file against each New Borrower in the appropriate filing officesa pro forma basis, such searches than 4.50 to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,1.00;
(viid) an The Administrative Agents shall have received a legal opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,Borrower Parties, addressed to the Lender Group and reasonably satisfactory to the Administrative Agents;
(viiie) The Administrative Agents shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of each Eligible Asset Lease Agreement for each Eligible Asset the resolutions of such Person (or its general partner, members or manager, as applicable) authorizing the New Borrowers,
(ix) true execution, delivery and correct copies performance by such Person of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(bf) the Lenders The Administrative Agents shall have received at least five Business Days in advance a certificate of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) secretary or an assistant secretary of the Administrative Agent shall have received payment or evidence of payment by Borrower confirming compliance with the Borrowers of the costs and expenses referred conditions precedent set forth in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
clause (d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(ab) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effectthis Section 4; and
(eg) the representations The Borrowers shall have paid all reasonable and warranties set forth in Section 7 hereof shall be true documented costs and correct in all material respects as expenses of the date hereof.Administrative Agents in connection with this Amendment (including the reasonable and documented fees, disbursements and other charges of Shearman & Sterling LLP as counsel to the Administrative Agents). NYDOCS02/989260 4 Amendment No. 4 to Credit Agreement
Appears in 1 contract
Sources: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. The amendments set This Amendment shall become effective as of August 31, 1996, if, and only if, the Agent has received each of the following:
(a) duly executed originals of this Amendment from the Borrower, the Agent and each of the Lenders,
(b) duly executed originals of a Warrant Purchase Agreement from the Borrower and the Lenders in form and substance acceptable to the Lenders,
(c) duly executed originals of warrants (the "Warrants") for the purchase of an aggregate amount of 550,000 shares of common stock of the Borrower in form and substance acceptable to the Lenders,
(d) a reaffirmation from Norand Technology Corporation, a Delaware corporation, in form and substance acceptable to the Lenders,
(e) a certificate, signed by the Secretary or Assistant Secretary of the Borrower, stating that there has been no change in the articles of incorporation and by-laws of the Borrower since those delivered in connection with the Credit Agreement or if there have been changes, setting forth in Section 2 such changes,
(f) a certificate of good standing or qualification to do business of recent date for the Borrower from the States of Iowa, Minnesota and Delaware,
(g) copies, certified by the Secretary or Assistant Secretary of the Borrower, of its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the execution of this Amendment, the joinder Notes and the Warrants and related Warrant Purchase Agreement,
(h) an incumbency certificate, executed by the Secretary or Assistant Secretary of the New Borrowers pursuant Borrower, which shall identify by name and title and bear the signature of the officers of the Borrower authorized to Section 3 of this sign the Amendment, the Notes and the limited waiver set forth in Section 4 of this AmendmentWarrants and to make borrowings hereunder, as well as any other terms and conditions set forth herein, upon which certificate the Lenders shall be effective as entitled to rely until informed of any change in writing by the Borrower,
(i) written opinions of Maye▇ ▇▇▇▇▇ & ▇lat▇, ▇▇ecial counsel to the Borrower and its Subsidiaries, and of Jame▇ ▇. ▇▇▇▇▇▇▇, ▇▇neral Counsel of the Effective DateBorrower, subject addressed to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following, Lenders in form and substance reasonably satisfactory acceptable to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(iij) amended and restated Notes, executed by for the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer account of each New Borrower certifying as Lender, a restructuring fee equal to the incumbency and genuineness one-tenth of the signature of each officer one percent (.10%) of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower Lender's Commitments as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretohereof, and
(xk) a duly completed Borrowing Base Reportsuch other documents, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers instruments and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and agreements as any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment Lender or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could Sidley & Austin may reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofrequest.
Appears in 1 contract
Sources: Credit Agreement (Norand Corp /De/)
Conditions of Effectiveness. The amendments set forth in Section 2 of this AmendmentThis Amendment shall become effective when, and only when, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the BorrowersBorrowers and all of the Banks, except that Section 1 hereof shall become effective when, and only when, the Administrative AgentAgent shall have additionally received all of the following documents, each document (unless otherwise indicated) being dated the date of receipt thereof by the Agent (which date shall be the same for all such documents), in form and substance satisfactory to the Banks:
(a) Certified copies of (i) the resolutions of the Board of Directors or Executive Committee of each Borrower approving this Amendment and the Lenders,
matters contemplated hereby, (ii) amended all documents evidencing other necessary corporate action and restated Notesgovernmental approvals, executed by if any, with respect to this Amendment and the Borrowers,
matters contemplated hereby, (iii) a joinder all waivers and amendments with respect to the Security AgreementJunior Debt concerning the matters covered by this Amendment, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral which shall include an amendment to the extent required under Junior Debt documents extending the Security Agreement,
maturity date thereof to April 15, 1998, and (iv) a an executed copy of Amendment No. 4 to Receivables Purchase and Servicing Agreement extending the maturity date of the Purchase Agreement to March 31, 1998 and in form and substance satisfactory to the Banks.
(b) A certificate of the secretary, assistant secretary Secretary or other Responsible Officer an Assistant Secretary of each New Borrower certifying as to the incumbency names and genuineness true signatures of the signature of each officer officers of such New Borrower executing the Loan Documents authorized to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of sign this Amendment and the other Loan Documents documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,be delivered hereunder.
(vc) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an A favorable opinion of TBrob▇▇▇, ▇▇le▇▇▇ P& ▇arr▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel for the Borrowers, to the New effect that this Amendment and each and every other document delivered by any of the Borrowers have been duly authorized, executed and delivered by such Borrowers,, and constitute the legal, valid and binding obligations of such Borrowers, enforceable against such Borrowers in accordance with their respective terms, and to such other matters as the Agent may reasonably require.
(viiid) A certificate signed by a copy duly authorized officer of each Eligible Asset Lease Agreement for each Eligible Asset Borrower stating that:
(i) The representations and warranties contained in Section 3 hereof are correct on and as of the New Borrowers,
(ix) true date of such certificate as though made on and correct copies as of all Material Contractual Obligations described on Schedule 3.7 heretosuch date, and
(xii) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after After giving effect to the joinder terms of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event has occurred and is continuing which constitutes a Default or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andan Event of Default.
(e) Results of a recent field examination by the representations Banks of the Borrowers' assets, liabilities, books and warranties set forth records that are satisfactory to the Banks in Section 7 hereof their sole discretion.
(f) A 1998 Business Plan (forecasted on a monthly basis).
(g) Payment of a $40,000 extension fee to the Agent for the ratable benefit of the Banks, which shall be true and correct in all material respects as of fully earned by the Banks on the date hereofso paid.
Appears in 1 contract
Sources: Credit Agreement (Us Homecare Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this AmendmentThis Amendment and Restatement shall become effective when, and the limited waiver set forth in Section 4 of this Amendmentonly when, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each counterparts of this Amendment and Restatement duly executed by the Borrower and the Lenders or, as to any of the followingLenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment and Restatement, and Section 1 hereof shall become effective when, and only when, the Administrative Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent:Agent (unless otherwise specified) and in sufficient copies for each Lender (unless otherwise specified):
(ia) a counterpart The A Notes to the order of the Lenders, respectively.
(b) Certified copies of (x) the resolutions of the Designated Persons appointed by the Board of Directors of the Borrower approving this Amendment executed by the Borrowersand Restatement, the Administrative AgentExisting Credit Agreement as amended by this Amendment and Restatement, the Notes and the matters contemplated hereby and thereby, and (y) the Lenders,Borrower's charter and by-laws and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and Restatement, the Existing Credit Agreement as amended by this Amendment and Restatement and the Notes.
(iic) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a A certificate of the secretary, assistant secretary Secretary or other Responsible Officer Assistant Secretary of each New the Borrower certifying as to the incumbency names and genuineness true signatures of the signature officers of each officer of such New the Borrower executing the Loan Documents authorized to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of sign this Amendment and Restatement, the Notes and the other Loan Documents documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,be delivered hereunder.
(vd) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an A favorable opinion of TJohn ▇▇▇▇▇▇▇ P▇▇▇▇▇ . ▇▇▇▇▇▇▇▇ S, ▇▇▇▇▇▇ LLPrporate Secretary and Associate General Counsel of the Borrower, counsel that this Amendment and Restatement, the Existing Credit Agreement as amended by this Amendment and Restatement and the Notes are the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms, in form and substance satisfactory to the New Borrowers,Administrative Agent.
(viiie) A certificate signed by a copy of each Eligible Asset Lease Agreement for each Eligible Asset duly authorized officer of the New Borrowers,Borrower stating that:
(ixi) true The representations and warranties contained in Section 3 are correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder and as of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) such certificate as though made on and as of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effectsuch date; and
(eii) No event has occurred and is continuing that constitutes a Default.
(f) Federal Reserve Forms U-1 provided for in Regulation U, the representations and warranties set forth statements made in Section 7 hereof which shall be true such as to permit the transactions contemplated hereby and correct by the Existing Credit Agreement as amended by this Amendment and Restatement in all material respects as accordance with Regulation U.
(g) An environmental disclosure report in form and substance satisfactory to the Administrative Agent. The effectiveness of this Amendment and Restatement is conditioned upon the accuracy of the date hereoffactual matters described herein. This Amendment and Restatement is subject to the provisions of Section 8.01 of the Existing Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. The amendments to the Credit Agreement set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Amendment shall be effective as of on the Amendment Effective Date, subject to the satisfaction of the following conditions precedent:
(a) provided that the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) a counterpart of this Amendment executed by each of the Borrowers, the Administrative Agent, and the Lenders,parties hereto (which may be by telecopy transmission);
(iib) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer a Responsible Officer as the Administrative Agent may request reasonably require to perfect its Lien on any Collateral to establish the extent required under identities of and verify the Security Agreement,
(iv) a certificate authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying thereof authorized to act as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority Responsible Officer in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement connection with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(bc) a certificate from the Lenders shall have received at least five Business Days appropriate governmental authority in advance the Borrower’s state of organization evidencing that the Effective Date (x) all documentation and other information that Borrower is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsin good standing, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, certificate of a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall Responsible Officer certifying that no amendments have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, been made to the extent invoiced on Borrower’s Organization Documents since January 24, 2003, or prior to the date hereofif such amendments have been made, certifying a copy of such amendments;
(d) a certificate of a Responsible Officer certifying that there has been no Default (other than the Specified Default) shall have occurred and be continuing, and event or circumstance since the effective date of the most recent financial statements dated as of December 31, 2004 delivered pursuant to Section 7.1(a6.01(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, Agreement which has had or could reasonably be expected to have a Material Adverse Effect;
(e) an opinion of counsel to the Borrower with respect to the Credit Agreement as amended, substantially in the form attached as Exhibit E to the Credit Agreement;
(f) all arrangement and upfront fees and expenses of the Arranger required to be paid by the Borrower concurrently with the Amendment Effective Date; and
(eg) such other assurances, certificates, documents, consents or opinions as the representations Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereoftimely request.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Amendment shall be effective as of the Effective Date, subject to the satisfaction of each of the following conditions precedent:precedent (the date on which all such conditions are satisfied, the “First Amendment Effective Date”):
(a) the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower, the Administrative Agent and each of the followingIncreasing Lenders;
(b) the Administrative Agent shall have received counterparts of replacement Revolving Notes in favor of each Increasing Lender (in each case, if requested thereby), duly executed by the Borrower;
(c) the Administrative Agent shall have received an executed acknowledgment and reaffirmation of this Amendment, in form and substance reasonably satisfactory to the Administrative Agent:, by the Subsidiary Guarantors and/or other Credit Parties;
(id) a counterpart the representations and warranties of this Amendment executed by the Borrowers, the Administrative Agent, Credit Parties contained in Section 5 shall be true and the Lenders,correct;
(iie) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) shall have received a certificate of the secretary, assistant secretary or other a Responsible Officer of each New the Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New the Borrower authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment and the other Loan Documents executed in connection herewith to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(cf) the Administrative Agent shall have received payment or evidence of payment by from the Borrowers of Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the costs and expenses referred Administrative Agent, that the Borrower is in Section 12.3 compliance with the financial covenants set forth in Article X of the Credit Agreement, to in each case based on the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements most recently delivered pursuant to Section 7.1(a8.1(a) or 8.1(b) of the Credit Agreement, no event or circumstance exists thatas applicable, either individually or in both before and after giving effect (on a Pro Forma Basis) to (i) the aggregate, has had or could reasonably Incremental Revolving Credit Commitment and (ii) the making of any Loans pursuant thereto (with the Incremental Revolving Credit Commitment being deemed to be expected fully funded);
(g) the Administrative Agent shall have received customary legal opinions from counsel to have a Material Adverse Effectthe Borrower with respect to this Amendment; and
(eh) the representations and warranties set forth Borrower shall have paid all fees as separately agreed to in Section 7 hereof shall be true and correct in all material respects as of the date hereofconnection with this Amendment.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the first date (such date being referred to as the “Amendment No. 4 Effective Date”, subject to the satisfaction which date is June 26, 2024), when each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received (i) counterparts of this Amendment duly executed and delivered by (A) the Loan Parties, (B) the Administrative Agent, (C) each Lender (including each Incremental Lender), L/C Issuer and Swing Line Lender and (D) the Exiting Lender and (ii) a fully executed copy of an amendment to the followingRelative Rights Agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(b) The Administrative Agent shall have received a favorable opinion of each of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties, (ii) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, special Tennessee counsel to the Loan Parties and (iii) ▇▇▇▇▇ Law Firm, special New Mexico counsel to the Loan Parties, in each case, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated as of the Amendment No. 4 Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) Receipt by the Administrative Agent of the following:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate copies of the secretary, assistant secretary or other Responsible Officer Organization Documents of each New Borrower certifying as Loan Party certified to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct be true and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its of the state or other jurisdiction of formationits incorporation or organization, (B) the bylaws where applicable, and certified by a secretary or comparable organizational documents assistant secretary of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents Party to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofAmendment No. 4 Effective Date (or, in the alternative, a certification by a Responsible Officer that no modifications to the Organization Documents delivered on the Original Closing Date or thereafter have occurred since such date);
(ii) copies of 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 request prior to the Amendment No. 4 Effective Date evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party; and
(iii) copies of such documents and certifications as the Administrative Agent may reasonably request prior to the Amendment No. 4 Effective Date to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(d) The Administrative Agent shall have received (i) searches of Uniform Commercial Code filings, tax and judgment liens in the jurisdiction of formation of each Loan Party, the jurisdiction of the chief executive office of each Loan Party where a filing would need to be made in order to perfect the Collateral Agent’s security interest in the Collateral, copies of the financing statements or other liens on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and Liens to be released substantially concurrently with the consummation of the Transaction, and (ii) searches of ownership of, and ▇▇▇▇▇ on, intellectual property of each Loan Party (in each case, to the extent reasonably requested by the Administrative Agent or Collateral Agent) in the appropriate governmental offices.
(e) The Administrative Agent shall have received a certificate executed by a Responsible Officer of the Administrative Borrower as of the Amendment No. 4 Effective Date, substantially in the form of Exhibit Q to the ABL Credit Agreement regarding the Solvency of Parent and its Subsidiaries on a consolidated basis and immediately after giving effect to the consummation of the transactions contemplated hereby on the Amendment No. 4
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Conditions of Effectiveness. The amendments effectiveness of this Seventeenth Amendment is expressly conditioned upon the occurrence and completion of all of the following: (i) receipt by the Agent of the nonrefundable fee set forth in Section 2 that certain letter agreement among the Agent and the Borrowers with respect to this Seventeenth Amendment; (ii) receipt by the Agent on behalf of the Banks of the nonrefundable fees equal to the aggregate of the amounts set forth on Exhibit II hereto; (iii) the Agent's receipt of counterparts of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Seventeenth Amendment duly executed by the Borrowers, the Administrative AgentGuarantors, the Agent and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
Banks; (iv) the Agent's receipt of an incumbency certificate signed by the Secretary or Assistant Secretary of the Borrowers and Guarantors, and a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date action taken by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing Borrowers and Guarantors to authorize the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
Seventeenth Amendment; (v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇Rich▇▇▇ P▇▇▇▇▇ . ▇▇▇▇▇▇▇▇ S▇, ▇▇▇▇▇▇ LLPquire, counsel Counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretoLoan Parties, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect reasonably satisfactory to the joinder of the New Borrowers and the other transactions contemplated by Agent regarding this Seventeenth Amendment;
; (bvi) the Lenders shall have received at least five Business Days in advance of the Effective Date with respect to each new Guarantor or new Borrower (xa "Joining Subsidiary") all documentation and other information that is as required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 11.18 of the Credit Agreement, including without limitation the completion of the following: (1) executing and delivering to the extent invoiced on or prior Agent (A) in the case of a Joining Subsidiary which becomes a Borrower, a Revolving Credit Note in the form of Exhibit 1.01(R) to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists thatpayable to each Bank, either individually or (B) a joinder to the Credit Agreement in form satisfactory to the Agent, (C) a counterpart signature page to the Guaranty Agreement executed by certain Loan Parties which is in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andform of Exhibit 1.01 (G)
(e1) to the representations Credit Agreement, in the case of a Joining Subsidiary which becomes a Borrower, and warranties set forth Exhibit 1.01(G)(2) to the Credit Agreement, in Section 7 hereof shall be true and correct in all material respects as the case of the date hereof.a Joining Subsidiary which
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Sources: Credit Agreement (Novacare Inc)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, (i) This Amendment shall be become effective as of the date (the “Amendment Effective Date, subject to the satisfaction ”) that each of the following conditions precedent:precedent shall have been satisfied (or waived in accordance with Section 10.2 of the Credit Agreement):
(a1) the The Administrative Agent shall have received each of the following(which may be by electronic transmission), in form and substance reasonably satisfactory to the Administrative Agent:
(i) , a counterpart of this Amendment which shall have been executed by the Borrowers, the Administrative Agent, the Issuing Bank, the Lenders, Parent and the Lenders,
Borrower (ii) amended and restated Notes, executed which may be by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering CollateralPDF transmission);
(vi2) the results Each of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof 6 of this Amendment shall be true and correct correct;
(3) Borrower shall have paid all fees and expenses due and owing to the Lenders, the Administrative Agent and the Sole Lead Arranger on or prior to the Amendment Effective Date pursuant to the terms of this Amendment (including, but not limited to, reasonable attorneys’ fees of counsel to the Administrative Agent (but limited to one primary outside counsel for the Administrative Agent and Sole Lead Arranger)) and any fee letter agreed upon in all material respects as writing by the Borrower, the Administrative Agent and the Sole Lead Arranger;
(4) The Eddy County Acquisition shall have been (or contemporaneously with the Amendment Effective Date shall be) consummated in accordance with the terms of the date hereofEddy County Acquisition Documents, without giving effect to any waiver, modification or consent thereunder that is materially adverse to the interests of the Lenders (as reasonably determined by the Administrative Agent);
(5) The Administrative Agent shall have received fully executed copies of the Eddy County Acquisition Agreement and all other material documents and agreements evidencing the Eddy County Acquisition, together with all exhibits and schedules, certified by a Responsible Officer of the Borrower as being true and correct and complete; and
(6) The Amendment Effective Date shall occur on or before May 3, 2023.
(ii) Without limiting the generality of the provisions of Sections 3.1 and 3.2 of the Credit Agreement, for purposes of determining compliance with the conditions specified in Section 5(a), each Lender that has signed this Amendment (and its permitted successors and assigns) shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto.
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Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Amendment is subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each counterparts of this Amendment duly executed by the followingBorrower, the Lenders required to execute this Amendment in order to give effect hereto, and the Administrative Agent;
(b) the Administrative Agent shall have received a Reaffirmation of Loan Documents in form and substance reasonably satisfactory to the Administrative Agent:;
(ic) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral shall have received payment of all reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket fees and expenses of counsel for the Administrative Agent for which an invoice has been presented at least one (1) Business Day prior to the extent required under the Security Agreement,Effective Date) and all other fees due and payable in connection with this Amendment;
(ivd) the Administrative Agent shall have received for the benefit of each Lender `that executes and delivers its signature page hereto (as delivery shall be determined by the Administrative Agent in its sole discretion) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as fee equal to the incumbency and genuineness of the signature of each officer of 0.25% multiplied by such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower Lender’s Commitment as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date hereof immediately after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;; and
(bi) the Lenders Administrative Agent shall have received received, at least five two (2) Business Days in advance of prior to the Effective Date (x) Date, all documentation and other information that is regarding any Loan Party required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; provided, that the Administrative Agent shall have requested such information in writing at least five (5) Business Days prior to the Effective Date, and (yii) if any New Borrower each Lender shall have received, at least two (2) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to each Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; provided, a Beneficial Ownership Certification in relation to that such New Borrower;
(c) the Administrative Agent Lender shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred requested, in Section 12.3 of the Credit Agreement, a written notice to the extent invoiced on or Borrower at least five (5) Business Days prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuingEffective Date, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreementsuch Beneficial Ownership Certification; provided further, no event or circumstance exists that, either individually or in upon the aggregateexecution and delivery by such Lender of its signature page to this Amendment, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties conditions set forth in Section 7 hereof this clause (ii) shall be true and correct in all material respects as of the date hereofdeemed to be satisfied).
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Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, (a) This Amendment shall be become effective as of the date (the “Amendment Effective Date, subject to the satisfaction ”) that each of the following conditions precedent:precedent shall have been satisfied (or waived in accordance with Section 10.2 of the Credit Agreement):
(a1) the The Administrative Agent shall have received each of the following(which may be by electronic transmission), in form and substance reasonably satisfactory to the Administrative Agent:
(i) , a counterpart of this Amendment which shall have been executed by the Borrowers, the Administrative Agent, the Issuing Bank, the Lenders, Parent and the Lenders,Borrower (which may be by PDF transmission);
(ii2) amended Each of the representations and restated Notes, executed by the Borrowers,warranties set forth in Section 6 of this Amendment shall be true and correct;
(iii3) a joinder Borrower shall have paid all fees and expenses due and owing to the Security AgreementLenders, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien and the Sole Lead Arranger on any Collateral or prior to the extent required under Amendment Effective Date pursuant to the Security Agreement,terms of this Amendment (including, but not limited to, reasonable attorneys’ fees of counsel to the Administrative Agent (but limited to one primary outside counsel for the Administrative Agent and Sole Lead Arranger)) and any fee letter agreed upon in writing by the Borrower, the Administrative Agent and the Sole Lead Arranger;
(iv4) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, a certificate of the secretary, assistant secretary or other a Responsible Officer of each New Borrower certifying Loan Party dated as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party Amendment Effective Date, attaching and certifying that attached thereto is a truecopies of its bylaws, correct partnership agreement or limited liability company agreement, and complete copy of (A) the articles resolutions of incorporation its board of directors or other equivalent governing body, or comparable organizational documents of such New Borrower and all amendments theretoauthorizations, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents in connection therewith to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party;
(5) The Administrative Agent (or its counsel) shall have received, in form and (D) substance satisfactory to the Administrative Agent, certified copies of the articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation, each dated as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateraldate;
(vi6) the results of UCC Lien searches showing all financing statements The Administrative Agent (or its counsel) shall have received, in form and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable substance satisfactory to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an Agent, a favorable written opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ & Knight LLP, counsel to the Loan Parties, dated as of the Amendment Effective Date addressed to the Administrative Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Bank and the Lenders);
(7) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, amendments and reaffirmations of the Collateral Documents executed by ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLPand the other Loan Parties, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement as applicable, in sufficient counterparts for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretorecording, as applicable; and
(x8) The Administrative Agent (or its counsel) a duly completed Borrowing Base Reportshall have received, calculating the Borrowing Base on the Effective Date after giving effect in form and substance satisfactory to the joinder of Administrative Agent, such other documents, certificates or information as the New Borrowers and Administrative Agent or the other transactions contemplated by this Amendment;Required Lenders shall have reasonably requested.
(b) Without limiting the Lenders shall have received at least five Business Days in advance generality of the Effective Date provisions of Sections 3.1 and 3.2 of the Credit Agreement, for purposes of determining compliance with the conditions specified in Section 5(a), each Lender that has signed this Amendment (xand its permitted successors and assigns) all documentation and shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other information that is matter required hereunder to be consented to or approved by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as or acceptable or satisfactory to a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) Lender unless the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or written notice from such Lender prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofproposed Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Second Amendment shall be become effective as of the date (the “Second Amendment Effective Date, subject to the satisfaction of the following conditions precedent”) when:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Second Amendment executed by each of the Borrowers, the Administrative AgentRequired Lenders and, and the Lenders,
(ii) amended and restated Notes, executed acknowledged by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of (ii) the Property of Second Amendment Documents executed by the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendmentparties thereto;
(b) the Lenders Company shall have received at least five Business Days in advance of paid the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerSecond Amendment Fees;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers a Secretary’s Certificate for each of the costs Borrowers: (i) attesting as to the incumbency of authorized officers; (ii) certifying that there have been no changes in the certificate of incorporation or bylaws of the Borrowers, since the date of the Secretary’s Certificate delivered in connection with the execution and expenses referred in Section 12.3 delivery of the Credit Agreement; and (ii) attaching true and correct copies of (A) evidence of authorization of the Borrowers’ execution and full performance of this Second Amendment, the other Second Amendment Documents and all other documents and actions required hereunder; and (B) good standing certificates from the jurisdictions of incorporation of each of the Borrowers (or in the case of any Dutch Borrower, an extract from the commercial register showing the existence of such Dutch Borrower) certifying to the extent invoiced on or prior to due organization and good standing of each of the date hereofBorrowers;
(d) the Administrative Agent shall have received a favorable opinion of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the domestic Borrowers, and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Foreign Obligors in form and substance reasonably acceptable to Administrative Agent and its counsel and addressed to Administrative Agent and each Lender;
(e) the Company shall have paid all reasonable out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of counsel to the Administrative Agent invoiced to the Company in reasonable detail) incurred in connection with this Second Amendment and invoiced prior to the time the condition in clause (a) above is satisfied; and
(f) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date or would occur as a result of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereoftransactions contemplated by this Second Amendment.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”, subject to the satisfaction which date is March 26, 2014) when each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received each this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Additional Term B-1 Lender and (E) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the followingAmendment No. 1 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the Second Lien Collateral Agent and the Lenders, an opinion from Ropes & ▇▇▇▇ LLP, New York counsel for the Loan Parties, dated as of the Amendment No. 1 Effective Date and addressed to the Administrative Agent, the Second Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent:.
(id) a counterpart The Administrative Agent shall have received such (x) certificates of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
good standing (ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreementextent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to perfect its Lien on any Collateral to the extent required under the Security Agreement,
act as a Responsible Officer in connection with this Amendment and (ivy) a certificate certificate, dated as of the secretaryAmendment No. 1 Effective Date, assistant secretary or other signed by a Responsible Officer of each New Borrower certifying as the Borrower, confirming (i) satisfaction of the conditions set forth in Sections 4(f) and (g) and (ii) that the Term B-1 Loans meet the requirements and conditions to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower Other Term Loans under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 2.15 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
related definitions thereunder (vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act definition of “Credit Agreement Refinancing Indebtedness”).
(e) Payment of (x) all reasonable fees and any applicable “know your customer” rules expenses due to the Administrative Agent and regulationsthe Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 1 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 1 Effective Date and (y) if any New Borrower qualifies the Effectiveness Fee to the Lenders party to Amendment No. 1 on the Amendment No. 1 Effective Date, which shall be netted against Term B-1 Loans made by such Lenders. Substantially simultaneous with effectiveness, the Term Lenders (excluding the Additional Term B-1 Lender in its capacity as a “legal entity customer” such) under the Beneficial Ownership Regulationexisting Credit Agreement shall have been paid (x) all accrued principal and interest on their Initial Term Loans to, a Beneficial Ownership Certification in relation to such New Borrower;
but not including, the Amendment No. 1 Effective Date and (cy) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered prepayment premium pursuant to Section 7.1(a2.05(a)(iv) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and.
(ef) the The representations and warranties set forth of the Borrower and each other Loan Party contained in Section 7 hereof Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the date hereofeffectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 1 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this AmendmentThis Amendment shall become effective when, and only when, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received (a) payment of the costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Agent in connection with this Amendment, (b) payment of a closing fee for the benefit of the Lenders as provided in the letter agreement specified in clause (c)(v) below and (c) each of the followingfollowing documents (collectively, the “Amendment Documents”), which documents shall be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment Amendment, duly executed by the Borrowers, the Administrative Agent, Borrower and the Lenders,each Lender;
(ii) amended a Promissory Note payable to the order of each of the Lenders, substantially in the form of Exhibit A hereto, each in an amount equal to such Lender’s Pro Rata Share of $100,000,000 and restated Notes, duly executed by the Borrowers,Borrower;
(iii) a joinder CapEx Loan Promissory Note payable to the Security Agreementorder of each of the Lenders, substantially in the form of Exhibit B hereto, each in an amount equal to such Lender’s Pro Rata Share of $30,000,000 and duly executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,Borrower;
(iv) a certificate copy of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness resolutions of the signature Board of each officer Directors (or similar evidence of such New Borrower executing authorization) of the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Amendment Documents to which it the Borrower is a party and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the incumbency, names and true signatures of the officers of the Borrower authorized to sign this Amendment and the other Amendment Documents to which the Borrower is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,;
(v) copies a letter agreement as to the payment by the Borrower of insurance certificates describing all insurance policies required by Section 7.6 certain fees to the Agent for the benefit of the Credit Agreement with respect to Lenders, duly executed by the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;Borrower; and
(vi) such other agreements, instruments, documents and evidence as the results of UCC Lien searches showing all financing statements Agent deems necessary in its reasonable discretion in connection with the transactions contemplated hereby. Notwithstanding the foregoing conditions, this Amendment shall become effective and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches conditions set forth above shall be deemed to be as of a date acceptable have been satisfied upon delivery to the Administrative Borrower by the Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of this Amendment, fully executed by the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers Agent and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofLenders.
Appears in 1 contract
Sources: Loan and Security Agreement (American Railcar Industries, Inc./De)
Conditions of Effectiveness. 3.1 The amendments consent set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Article I hereof shall be become effective as of the date (the “Consent Effective Date”) when, subject to the satisfaction of the following conditions precedent:
(a) and only when, the Administrative Agent shall have received an executed counterpart hereof from each of the followingCredit Parties and the Required Lenders.
3.2 The amendments set forth in Article II hereof shall become effective as of the date (the “Second Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received evidence reasonably satisfactory to it that the closing of the Redomestication Transactions in accordance with the Scheme of Arrangement has occurred without any amendment or modification thereto that, in the reasonable determination of the Administrative Agent, would be adverse in any material respect to the rights or interests of the Lenders, including without limitation, copies of all court orders and governmental certificates and orders sanctioning the consummation of the Redomestication Transactions;
(b) The Administrative Agent shall have received a legal opinion from counsel to the Credit Parties, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with addressing such stock powers or other agreements or instruments of transfer matters as the Administrative Agent may request to perfect its Lien on any Collateral reasonably request;
(c) The Administrative Agent shall have received a certificate, signed by a Responsible Officer of each Credit Party, in form and substance reasonably satisfactory to the extent required under the Security Agreement,Administrative Agent, certifying that no Default or Event of Default exists, both immediately before and after giving effect to this Second Amendment;
(ivd) The Administrative Agent shall have received a certificate of the secretary, an assistant secretary or other Responsible Officer appropriate officer of each New Borrower Swiss Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the Articles of Association and all amendments thereto of Swiss Holdings, certified as of a recent date by the appropriate Governmental Authority of its jurisdiction of organization, and that the same has not been amended since the date of such certification, and (ii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of Swiss Holdings authorizing the execution, delivery and performance of this Second Amendment and its joinder to the Secured Credit Agreement as a Guarantor, and as to the incumbency and genuineness of the signature of each officer of such New Borrower Swiss Holdings executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation this Second Amendment or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property other Credit Documents, and attaching all such copies of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations documents described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendmentabove;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) On the Second Amendment Effective Date, the representations and warranties set forth in Section 7 Article IV hereof shall be true and correct in correct; and
(f) The Credit Parties shall have paid all material respects as reasonable out-of-pocket costs and expenses of the date hereofAdministrative Agent in connection with the preparation, negotiation, execution and delivery of this Second Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)
Conditions of Effectiveness. The amendments set forth in effectiveness of the amendment and restatement of the Existing Credit Agreement pursuant to Section 1 or Section 2 of this Amendment, Agreement and the joinder of amendments to the New Borrowers Guarantee and Collateral Agreement pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Agreement shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from each of the Borrowers, the Subsidiary Guarantors (including the Additional Guarantors described below), the Lenders under the Existing Credit Agreement, the Additional Term Lenders, the Administrative Agent, the Issuing Bank and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received (i) a Confirmation Agreement executed by certain of the Canadian Subsidiaries of the Company in favor of the Administrative Agent and (ii) an Assumption Agreement in respect of the Guarantee and Collateral Agreement duly executed by Keystone Automotive Holdings, Inc. and each of its Subsidiaries joining as “Grantors” thereunder (collectively, the following“Additional Guarantors”), together with such other documents, certificates and financing statements required pursuant to the terms of the Guarantee and Collateral Agreement, all in form and substance reasonably satisfactory to the Administrative Agent:Agent and its counsel.
(ic) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the The Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
shall have received favorable written opinions (iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable addressed to the Administrative Agent and reflecting no Liens against any the Lenders and dated the Restatement Effective Date) of (i) K&L Gates LLP, U.S. counsel to the Property of Loan Parties, (ii) K&L Gates LLP, U.K. counsel to the New Borrower other than Permitted Liens,
Loan Parties, (viiiii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SAmsterdam N.V., Dutch counsel to the Loan Parties, and (iv) ▇▇▇▇▇▇ LLP▇. ▇▇▇▇▇▇, internal counsel to the New Borrowers,Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Parties (including the Additional Guarantors), the Loan Documents, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(viiid) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the The Lenders shall have received at least five Business Days in advance of satisfactory financial statement projections through and including the Effective Date Company’s 2018 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, a detailed description of the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification assumptions used in relation to preparing such New Borrower;projections).
(ce) the The Administrative Agent shall have received payment such documents and certificates as the Administrative Agent or evidence of payment by its counsel may reasonably request relating to the Borrowers organization, existence and good standing (or the equivalent in the applicable jurisdiction) of the costs and expenses referred in Section 12.3 Loan Parties (including the Additional Guarantors) (other than ATK Motorports Inc., which shall deliver its good standing certificate promptly after the Restatement Effective Date), 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 its counsel.
(f) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by a Responsible Officer of the Company, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement, to the extent invoiced .
(g) The Administrative Agent shall have received (i) all fees and other amounts due and payable on or prior to the date hereof;
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 Borrowers under the Loan Documents and (dii) no Default (other than all accrued and unpaid interest under the Specified DefaultExisting Credit Agreement and all accrued and unpaid fees under Sections 2.12(a) shall have occurred and be continuing, and since the effective date 2.12(b) of the most recent financial statements delivered Existing Credit Agreement. If any LC Disbursements and/or Swingline Loans are outstanding as of the Restatement Effective Date, such LC Disbursements and/or Swingline Loans shall be repaid, together with any interest accrued thereon. Notwithstanding anything in this Agreement or the Existing Credit Agreement to the contrary, the Borrowers shall not be required to compensate the Lenders pursuant to Section 7.1(a) 2.16 of the Existing Credit Agreement for any loss, cost or expense incurred by the Lenders as a result of the amendment and restatement of the Existing Credit Agreement or the re-evidencing of the Existing Loans, in each case pursuant to the terms of this Agreement and the Restated Credit Agreement. The Administrative Agent shall notify the Borrowers and the Lenders of the Restatement Effective Date, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof such notice shall be true conclusive and correct in all material respects as of the date hereofbinding.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of (a) AFSL's and AFC's obligations under this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Agreement shall be effective as of conditioned upon the Effective Date, subject to the satisfaction of the following conditions precedentfollowing:
(ai) the Administrative Agent shall have received each AFSL Trust's and the LISB Trust's execution and delivery to AFSL and AFC, prior to December 31, 2000,of this Agreement;
(ii) the AFSL Trust's and LISB Trust's execution and delivery to AFC, prior to December 31, 2000, of the followingAmended AFSL Loan Documents and the Amended LISB Loan Documents, respectively;
(iii) receipt of written certification (A) from the AFSL Trustee, in form and substance reasonably satisfactory to AFSL and AFC, that such Trustee has received the Administrative Agentopinion of its financial advisor, in form and substance satisfactory to such Trustee, substantially to the effect that: (I) the interest rate established by the Amended AFSL Loan Documents is not in excess of a reasonable rate; (II) the terms of the Amended AFSL Loan Documents are at least as favorable to the applicable Trust as would be the terms of a comparable loan resulting from arm's length negotiations between independent parties; and (III) the transactions described in this Agreement are fair to the AFSL ESOP and (B) from the LISB Trustee that it has been directed by United States Trust Company, in its capacity as investment manager to the LISB Trust, to execute this Agreement; and
(iv) receipt from the AFSL Trustee and the LISB Trustee of evidence satisfactory to AFSL and AFC that the documents described in section 5(a)(i) and (ii) have been duly authorized and executed on behalf of the applicable Trust by all requisite action on the part of the applicable Trustee;
(b) Each Trustee's obligations hereunder shall be conditioned on the following:
(i) a counterpart AFSL's and AFC's execution and delivery of this Amendment executed by the BorrowersAgreement to such Trustee prior to December 31, the Administrative Agent, and the Lenders,2000;
(ii) amended AFC's execution and restated Notesdelivery to such Trustee prior to December 31, executed by 2000 of the Borrowers,Amended AFSL Loan Documents or Amended LISB Loan Documents, as applicable;
(iii) in the case of the LISB Trust, receipt of a joinder direction by United States Trust Company, in its capacity as investment manager to the Security LISB Trust, to execute this Agreement, executed by and in the New Borrowerscase of the AFSL Trust, together with such stock powers or other agreements or instruments receipt from its financial advisor of transfer as the Administrative Agent may request an opinion, in form and substance satisfactory to perfect its Lien on any Collateral it, substantially to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of effect that: (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as interest rate established by the Amended AFSL Loan Documents is not in excess of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, reasonable rate; (B) the bylaws or terms of the Amended AFSL Loan Documents are at least as favorable to the applicable Trust as would be the terms of a comparable organizational documents of such New Borrower as in effect on the date of such certifications, loan resulting from arm's length negotiations between independent parties; and (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of transactions described in this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect are fair to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofAFSL ESOP.
Appears in 1 contract
Sources: Employee Stock Ownership Plan Agreement (Astoria Financial Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, This Amendment shall become effective on the joinder of date (the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the “Amendment No. 17 Effective Date, subject to the satisfaction of the following conditions precedent”) on which:
(a) the Administrative Agent shall have received each a counterpart signature page of this Amendment duly executed by (i) the Company, (ii) the Administrative Agent, (iii) the Lenders, and (iv) the Issuing Bank or, as to any of the followingforegoing parties, written evidence reasonably satisfactory to the Administrative Agent that such party has executed this Amendment;
(b) the Administrative Agent shall have received one or more counterparts of the Fee Letter Amendment No. 17, dated as of the date hereof, duly executed by the Company and Citicorp USA, Inc.;
(c) the representations and warranties set forth in Section 4 of this Amendment shall be true and correct in all respects;
(d) the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Issuing Bank and the Lenders and dated the 2 Amendment No. 17 to Credit Agreement Amendment No. 17 Effective Date) of (i) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President, General Counsel and Secretary of the Company, in a form reasonably satisfactory to the Administrative Agent and (ii) ▇▇▇▇▇ Day, in a form reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received documents and certificates relating to the organization and existence of the Company, the authorization of this Amendment and the related transactions, the incumbency of the persons executing this Amendment on behalf of the Company, all in form and substance reasonably satisfactory to the Administrative Agent:; and
(if) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
each Lender (viiand its Affiliates) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation fees and other information that is required by regulatory authorities under Anti-Money Laundering Lawsamounts due and payable on or prior to the Amendment No. 17 Effective Date, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or one (1) Business Day prior to the date hereof;
(d) no Default (other than Amendment No. 17 Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of Company under the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the first date (such date being referred to as the “Incremental Effective Date, subject to the satisfaction ”) when each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received each of the followingthis Amendment, in form duly executed and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed delivered by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower Loan Parties and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, Incremental Term Lenders and (C) resolutions duly adopted by the board Barclays Bank PLC.
(b) The Administrative Agent shall have received, on behalf of directors or comparable governing body of such New Borrower authorizing the executionitself, delivery and performance of this Amendment and the other Loan Documents to which it is a partyAgents, the Lenders and (D) certificates as of a recent date of the good standing or active statuseach L/C Issuer, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T(i) ▇▇▇▇▇▇▇▇ P& ▇▇▇▇▇ LLP, special counsel for the Loan Parties, and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Street LLP, Kansas counsel for the Borrowers, in each case, dated the Incremental Effective Date and addressed to the Agents, the Issuing Bank and the Lenders, in each case in form and substance satisfactory to the Administrative Agent.
(c) Payment of all reasonable fees and expenses due to the Administrative Agent (including, without limitation, fees and reasonable out-of-pocket expenses of ▇▇▇▇▇▇ S▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the New Borrowers,Administrative Agent) and original issue discount as otherwise agreed with the Incremental Term Lenders, in each case required to be paid on the Incremental Effective Date.
(viiid) a copy of The Administrative Agent shall have received with respect to each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 heretoMortgaged Property, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti“Life-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customerof-Loan” rules and regulations, Federal Emergency Management Agency standard flood hazard determination and (y) if any New improvements located on any Mortgaged Property are located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
and (cii) the Administrative Agent shall have received payment or evidence of payment by flood insurance satisfying the Borrowers requirements of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a8.03(c)(iv) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and.
(e) The Borrowers shall have delivered a certificate stating that all conditions required to be met for the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as incurrence of the date hereofIncremental Term Loans pursuant to Section 2.12(a) have been met including without limitation the pro forma requirements in the fifth sentence of Section 2.12(a).
Appears in 1 contract
Sources: Incremental Term Loan Amendment (NPC Restaurant Holdings, LLC)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction of the following conditions precedentTHIS AMENDMENT SHALL BE DEEMED EFFECTIVE AS OF THE FIRST DATE (SUCH DATE BEING REFERRED TO HEREIN AS THE “THIRD AMENDMENT EFFECTIVE DATE”) ON WHICH ALL OF THE FOLLOWING CONDITIONS PRECEDENT HAVE BEEN SATISFIED OR WAIVED IN WRITING:
(a) the Administrative Agent shall have received each Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be original, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) a counterpart executed counterparts of this Amendment executed by from each of the BorrowersLoan Parties, the Administrative Agent, and each of the Lenders,Lenders and L/C Issuers;
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to perfect act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing, in good standing and qualified to engage in business in (A) its Lien on any Collateral jurisdiction of organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent required under the Security Agreement,that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(iv) a favorable opinion of ▇▇▇▇▇▇▇ Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(v) a favorable opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of the secretary, assistant secretary or other a Responsible Officer of each New the Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of either (A) the articles attaching copies of incorporation or comparable organizational documents of such New Borrower all consents, licenses and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority approvals required in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing connection with the execution, delivery and performance of this Amendment by each Loan Party, and the other validity against each Loan Party, of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (DB) certificates as of a recent date of the good standing stating that no such consents, licenses or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,approvals are so required; and
(vii) an opinion a certificate signed by a Responsible Officer of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLPthe Borrower certifying that (1) no action, counsel suit, investigation or proceeding is pending or, to the New Borrowers,
knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (viiiA) a copy challenges the validity or enforceability of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Existing Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Amended Credit Agreement, no event any other Loan Document or circumstance exists thatany of the transactions contemplated hereby or thereby, either individually or in otherwise purports to restrict or prohibit the aggregateperformance of all or any portion of this Amendment, has had the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect; and, (2) since December 31, 2021, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and (3) no Default or Event of Default has occurred and is continuing under the Existing Credit Agreement.
(eb) At least five Business Days prior to the representations Third Amendment Effective Date, the Administrative Agent and warranties set forth in Section 7 hereof the Lenders shall be true have received documentation and correct in all material respects as other information with respect to each of the date hereofLoan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on the Third Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Conditions of Effectiveness. (i) The obligations of the applicable Incremental Term Lenders to make the Third Amendment Term Loans to the Borrower under this Amendment and the Amended Credit Agreement, (ii) the obligations of the applicable Incremental Term Lenders to make available the Fourth Delayed Draw Term Loan Commitments to the Borrower under this Amendment and the Amended Credit Agreement and (iii) the amendments set forth to the Credit Agreement contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth hereinhereof, shall be become effective as of the first date (the “Third Amendment Effective Date, subject to the satisfaction of ”) on which the following conditions precedent:shall have been satisfied (or waived by the Incremental Term Lenders):
(a) the Administrative Agent shall have received each counterparts of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the BorrowersBorrower, the Administrative AgentHoldings, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of Incremental Term Lenders and (ii) the New Borrower other than Permitted Liens,Guarantor Consent and Reaffirmation attached hereto (the “Guarantor Consent”) executed by each Guarantor;
(viib) an the Administrative Agent shall have received a customary legal opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ from ▇▇▇▇▇▇▇▇ S▇& ▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerLoan Parties;
(c) the Administrative Agent shall have received payment or evidence received, with respect to each Loan Party, certificates of payment by good standing from the Borrowers secretary of state of the costs and expenses referred in Section 12.3 state of the Credit Agreement, organization of each Loan Party (to the extent invoiced on such concept exists in such jurisdiction), customary certificates of resolutions or prior other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certifying true and complete copies of the Organizational Documents attached thereto (or certifying that such Organizational Documents have not changed since the Closing Date or January 4, 2021, as applicable) and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Guarantor Consent;
(d) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that (i) the conditions in clauses (f) and (g) of this Section 4 have been satisfied and (ii) the Incremental Term Loan Commitments do not exceed the Available Incremental Amount (including reasonably detailed calculations evidencing compliance with Ratio Based Incremental Amount (which may be by email)); provided the Administrative Agent and Incremental Term Lenders acknowledge the receipt and sufficiency of such reasonably detailed calculations as of the date hereof;
(de) no Default (other than the Specified Default) Administrative Agent shall have occurred received a solvency certificate from a Financial Officer of Holdings or the Borrower (after giving effect to the transactions contemplated by this Amendment on the Third Amendment Effective Date) based on and be continuing, and since substantially in the effective date of the most recent financial statements delivered pursuant form attached to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andAgreement as Exhibit I;
(ef) the representations and warranties set forth of the Borrower contained in Section 7 hereof Article V of the Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of the Third Amendment Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(g) no Event of Default would result from such proposed incurrence of the date hereofThird Amendment Term Loans (and after giving effect to the Fourth Delayed Draw Term Loan Commitments) on the Third Amendment Effective Date or from the application of the proceeds therefrom;
(h) the Administrative Agent shall have received a Committed Loan Notice as required by the Amended Credit Agreement;
(i) the Borrower shall have paid, or shall pay substantially concurrently with the making of the Incremental Term Loans on the Third Amendment Effective Date, (i) all reasonable and documented out-of-pocket expenses of the Administrative Agent (including, without limitation, the Attorney Costs of the Administrative Agent to the extent provided for in Section 10.04 of the Credit Agreement) and the Incremental Lenders in connection with this Amendment invoiced at least two (2) Business Days (unless otherwise reasonably agreed by the Borrower) prior to the Third Amendment Effective Date and (ii) for the account of each Incremental Term Lender, the fees described in and pursuant to the Third Amendment Fee Letter;
(j) the Administrative Agent shall have received at least (2) Business Days prior to the Third Amendment Effective Date all documentation and other information about the Borrower and the Guarantors (other than any Excluded Subsidiary) required under applicable “know your customer” and anti-money laundering rules and regulations (including the USA PATRIOT Act) that has been reasonably requested in writing at least five (5) Business Days prior to the Third Amendment Effective Date. For purposes of determining compliance with the conditions specified in this Section 4, the Incremental Term Lenders shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Incremental Term Lenders from and after the making by the Incremental Term Lenders of the Third Amendment Term Loans pursuant to Section 2.01(1)(e) and (f) of the Amended Credit Agreement and the effectiveness of the Fourth Delayed Draw Term Loan Commitments.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in effectiveness of Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Amendment shall be effective as of the Effective Date, subject to the satisfaction Agent’s receipt of the following documents, in form and substance satisfactory to Agent, or, as applicable, the following conditions precedentbeing met:
(a) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated NotesAmendment, executed by the Borrowers,Agent, each Lender and Borrower;
(iiib) a joinder to the Security Agreement, duly executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer an officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy attaching copies of (A) the articles certificate of incorporation or comparable organizational documents of such New Borrower and all amendments theretoincorporation, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, organization of Borrower and as in effect as of the Second Amendment Effective Date; (B) the bylaws or comparable organizational documents of such New Borrower Borrower, as in effect on as of the date of such certifications, Second Amendment Effective Date; (C) resolutions duly adopted by the of Borrower’s board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance evidencing approval of this Amendment and the other Loan Documents Advance to which it is a partybe made on the Second Amendment Effective Date, as such resolutions remain in full force and effect as of the Second Amendment Effective Date; and (D) certificates as a schedule setting forth the name, title and specimen signature of a recent date officers or other authorized signers on behalf of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) a certificate of good standing for Borrower from its jurisdiction of organization and similar certificates from all other jurisdictions in which it does business and where the Administrative Agent shall failure to be qualified could have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereofa Material Adverse Effect;
(d) no Default (other than the Specified Default) shall have occurred a perfection certificate, executed by Borrower, in form and be continuing, and since the effective date of the most recent financial statements delivered pursuant substance reasonably satisfactory to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andAgent;
(e) a legal opinion of Borrower’s counsel, in form and substance reasonably acceptable to Agent;
(f) on the Second Amendment Effective Date, after giving effect to the amendment of the Existing Loan Agreement contemplated hereby: (i) the representations and warranties set forth contained in Section 7 hereof 4 shall be true and correct in all material respects on and as of the date hereofSecond Amendment Effective Date as though made on and as of such date; and (ii) there exists no Event of Default or event that with the passage of time would result in an Event of Default; and
(g) Borrower shall have paid (i) all invoiced costs and expenses then due in accordance with Section 5(e), (ii) the Tranche 1C Facility Charge and (iii) all other fees, costs and expenses, if any, due and payable as of the Second Amendment Effective Date under the Loan Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (G1 Therapeutics, Inc.)
Conditions of Effectiveness. The amendments This Amendment, the agreements set forth in Section 2 of this Amendment, 3 and each First Amendment Lender’s obligation to provide the joinder of the New Borrowers First Amendment Loans pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Amendment shall be become effective as of the Effective Date, subject to the satisfaction first date on which all of the following conditions precedent:precedent are satisfied (or waived by the First Amendment Lenders and the Lenders in accordance with Section 10.2 of the Credit Agreement):
(a) receipt by each party hereto of a copy of this Amendment executed by the Borrower, each other Loan Party party hereto, each First Amendment Lender, each Prior Lender and the Administrative Agent;
(b) receipt by the Administrative Agent shall have received each (or its counsel) of the following, each in form and substance reasonably satisfactory to the Administrative Agent and the Lenders:
(i) a First Amendment Fee Letter, duly executed by the Borrower and the Administrative Agent;
(ii) a Perfection Certificate, dated as of the date hereof, duly executed by each Loan Party in favor of the Administrative Agent and the Lenders;
(iii) results of customary lien and judgment searches with respect to each Loan Party;
(iv) a completed Committed Loan Notice, duly executed by a Responsible Officer of the Borrower with respect to the Credit Extension to be made on the First Amendment Effective Date;
(v) a certificate of a Responsible Officer of each Domestic Loan Party attaching (a) its articles or certificate of incorporation, certificate of formation, articles of organization or certificate of partnership, as applicable, or equivalent thereof as in effect on the date hereof (including any amendments thereto), certified (as of a date reasonably near the First Amendment Effective Date) as being a true and correct copy thereof by the secretary of state or other applicable Governmental Authority of the jurisdiction in which such Domestic Loan Party is organized, (b) its bylaws, limited liability company agreement, declaration of sole member or partnership agreement, as applicable, or equivalent thereof as in effect on the date hereof (including any amendments thereto), (c) the resolutions of its board of directors, board of managers, sole member or comparable body, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect, (d) certifying the name, title and true signature of each officer of such Domestic Loan Party with authority to execute this Amendment and any other Loan Documents and (e) certificates of good standing, existence, or similar, as applicable, certified as of a recent date by the secretary of state or equivalent of the jurisdiction of such Domestic Loan Party’s jurisdiction of organization;
(vi) a corporate certificate of a director of each Loan Party that is an Irish Subsidiary in form, scope and substance customary for transactions of this type and reasonably satisfactory to the Administrative Agent;
(vii) written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇▇ LLP, Irish counsel to the Administrative Agent, and (iii) Walkers (Ireland) LLP, Irish counsel to the Loan Parties, in each case, addressed to the Administrative Agent, the First Amendment Lenders and the other Lenders and in form, scope and substance customary for transactions of this type and reasonably satisfactory to the Administrative Agent;
(viii) a certificate, dated as of the date hereof, and signed by a Responsible Officer of the Borrower, certifying that (A) no Default or Event of Default has occurred immediately before or will occur immediately after giving effect to the Amendment and the transactions contemplated thereby, (B) each of the representations and warranties of the Loan Parties set forth in the Credit Agreement and the other Loan Documents is true and correct in all material respects, in each case on and as of such date as if made on and as of such date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they were true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (C) since December 31, 2024, there has not occurred a Material Adverse Effect or any event or circumstance that would reasonably be expected to result in a Material Adverse Effect;
(ix) a Solvency Certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the First Amendment Effective Date immediately before and after giving effect to the transactions contemplated hereby, from the chief financial officer or an authorized person performing similar functions of the Borrower;
(x) an Irish law governed deed of confirmation executed by Synchronoss Technologies Holdings Limited and Synchronoss Software Ireland Limited in form and substance reasonably satisfactory to the Administrative Agent:;
(ixi) a counterpart of this certificate, dated the First Amendment executed Effective Date and signed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate Financial Officer of the secretaryBorrower, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is on a truePro Forma Basis, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in immediately after giving effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of to this Amendment and the other transactions contemplated hereby occurring on the First Amendment Effective Date the Loan Documents to which it is a party, and (D) certificates as Parties shall have Liquidity in excess of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, $5,000,000; and
(xxii) a duly completed Borrowing Base Reportevidence that the Borrower shall have delivered to the trustee under the Senior Notes Indenture an irrevocable notice of redemption providing for the redemption in full by the Borrower of all outstanding Senior Notes in accordance with the Senior Notes Indenture; provided that, calculating for the Borrowing Base avoidance of doubt, such notice of redemption may be conditioned on the Effective Date after giving effect to the joinder funding of the New Borrowers and the other transactions contemplated by this Amendment;First Amendment Loans.
(bc) the The Lenders shall have received at least five received, no later than three (3) Business Days in advance of prior to the First Amendment Effective Date Date, (xi) all documentation and other information that is requested by them and required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (yii) if any New to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New the Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;.
(d) no Default (other than the Specified Default) Loan Parties shall have occurred paid (i) all reasonable and be continuing, documented out-of-pocket costs and since the effective date expenses of the most recent financial statements delivered pursuant Lenders and the Administrative Agent to the extent required to be paid under Section 7.1(a) 10.3 of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations Agreement and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of unpaid on the date hereof, (ii) to the Administrative Agent all accrued and unpaid interest on the Initial Loans to, but excluding, the First Amendment Effective Date and (iii) to the Administrative Agent (for the ratable benefit of the Lenders as of immediately prior to the First Amendment Effective Date) the Prepayment Premium (as defined in the Existing Credit Agreement) in respect of the Initial Loans.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, This Amendment shall become --------------------------- effective and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be deemed effective as of August 12, 1999, if, and only if, the Effective Date, subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following, :
(a) duly executed originals of this Amendment from the Borrower and each of the Lenders;
(b) a duly executed supplement to the Subsidiary Guaranty in form and substance reasonably satisfactory acceptable to the Administrative AgentAgent or a duly executed Subsidiary Guaranty, substantially in the form of Exhibit "B" to the Credit Agreement, duly executed and delivered by each Subsidiary of the Borrower (other than Foreign Subsidiaries) which have become Subsidiaries since the date of the Credit Agreement, together with:
(i) copies of the articles or certificate of incorporation of such Subsidiaries, together with all amendments, and a counterpart certificate of this Amendment executed good standing, both certified by the Borrowers, the Administrative Agent, and the Lenders,appropriate governmental officer in its jurisdiction of incorporation;
(ii) amended copies, certified by the Secretary or Assistant Secretary of such Subsidiaries, of its by-laws and restated Notesof its Board of Directors' resolutions authorizing its execution of the Subsidiary Guaranty and certifying that no amendments have been made to its articles or certificate of incorporation subsequent to the date of certification by the applicable governmental officer referred to in item (i) above;
(iii) an incumbency certificate, executed by the Borrowers,
(iii) a joinder Secretary or Assistant Secretary of such Subsidiaries, which shall identify by name and title and bear the signature of the officers of such Subsidiary authorized to sign the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,Subsidiary Guaranty; and
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer an opinion of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement Subsidiaries' counsel with respect to the New BorrowersSubsidiary Guaranties, together with loss payable and lender endorsements in favor substantially the form of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) opinion received at the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any closing of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerCredit Agreement;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers a reaffirmation from each of the costs Borrower's other Subsidiaries which are parties to a Subsidiary Guaranty in the form of Exhibit A attached hereto and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date made a part hereof;; and ---------
(d) no Default (such other than documents, instruments and agreements as the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could Agent may reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofrequest.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the date hereof (the “Second Amendment Effective Date”) when, subject to the satisfaction and only when, each of the following conditions precedentprecedent shall have been satisfied:
(a) the Administrative Agent The Bank shall have received from each party hereto either (i) a counterpart of this Amendment signed on behalf of each Credit Party and the Bank, or (ii) written evidence satisfactory to the Bank (which may include facsimile or other electronic image scan transmission of a signed signature page of this Amendment) that each such party has signed a counterpart of this Amendment.
(b) The Bank shall have received a second amended and restated Revolving Note, duly executed by the Borrower for the account of the followingBank.
(c) The Bank shall have received an opinion of counsel to the Parent and its Subsidiaries dated as of the Second Amendment Effective Date and addressed to the Bank, in form and substance reasonably satisfactory to the Administrative Agent:Bank.
(d) The Bank shall have received a certificate of the secretary or an assistant secretary of each of the Parent and each of its Subsidiaries as of the Second Amendment Effective Date, dated as of the Second Amendment Effective Date and in form and substance reasonably satisfactory to the Bank, certifying, in a form acceptable to Bank, (i) a counterpart the articles or certificate of this Amendment executed by the Borrowersincorporation, the Administrative Agentcertificate of formation or other organizational document and all amendments thereto of such party, and the Lenders,
(ii) amended the bylaws, operating agreement or similar governing document of such party, as then in effect and restated Notesas in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed true and complete copy of resolutions adopted by the New Borrowersboard of directors (or similar governing body) of such party, together with such stock powers or authorizing the execution, delivery and performance of this Agreement and the other agreements or instruments of transfer as the Administrative Agent may request Credit Documents to perfect its Lien on any Collateral to the extent required under the Security Agreement,
which it is a party, and (iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower party executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a partyAmendment, and attaching all such copies of the documents described above.
(De) certificates The Bank shall have received a certificate as of a recent date of the good standing or active statusof each of the Parent and each of its Subsidiaries as of the Second Amendment Effective Date, as applicable, of such New Borrower under the laws of its jurisdiction of organization,, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(vf) copies of insurance certificates describing all insurance policies required by Section 7.6 of The Bank shall have received certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names the Credit Agreement with respect to Parent or the New Borrowers, together with loss payable and lender endorsements Borrower as debtor in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of jurisdictions listed beneath its name on Schedule I to the New Borrower other than Permitted Liens,Security Agreement, and the results thereof shall be reasonably satisfactory to the Bank.
(viig) an opinion The Bank shall have received updated certificates of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to insurance evidencing the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations insurance coverages described on Schedule 3.7 hereto4.16 and all other or additional coverages required under the Security Documents and naming the Bank as loss payee or additional insured, andas its interests may appear.
(xh) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent The Bank shall have received payment or evidence of payment by (i) all fees due and payable on the Borrowers of the costs Second Amendment Effective Date, and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced (ii) all other fees and other amounts due and payable on or prior to the date hereof;
Second Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (dincluding fees, charges and disbursements of counsel to the Bank) no Default (other than required to be reimbursed or paid by the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of Borrower under the Credit Agreement, no event this Amendment or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofany other Credit Document.
Appears in 1 contract
Sources: Credit Agreement (Jamba, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this AmendmentThis Eleventh Amendment shall not be effective until the date (such date, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the “Eleventh Amendment Effective Date, subject to the satisfaction ”) each of the following conditions precedentprecedent has been satisfied in full:
(a) the Administrative Agent shall have has received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Eleventh Amendment executed by each of the Borrowers, the Administrative Agent, and the Lenders,
parties hereto (ii) amended and restated Notes, executed which may be by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers telecopy or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendmentelectronic transmission);
(b) the Lenders shall have Administrative Agent has received at least five Business Days in advance of the Effective Date (x) all documentation a Guaranty and other information that is required Subsidiary Security Agreement executed by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsMOP Midstream, and evidence that MOP Midstream has used commercially reasonable efforts to obtain an Acknowledgment of Pledge from Centerpoint Energy Field Services, LLC (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerCenterpoint”);
(c) the Administrative Agent shall have has received payment such certificates of resolutions or evidence other action, incumbency certificates and/or other certificates of payment by officers of MOP Midstream as the Borrowers Administrative Agent may require to establish the identities of and verify the costs authority and expenses referred capacity of each officer thereof authorized to act in Section 12.3 of connection with the Credit Agreement, Loan Documents to the extent invoiced on or prior to the date hereofwhich MOP Midstream is a party;
(d) no Default (other than the Specified Default) shall have occurred and be continuingAdministrative Agent has received such evidence as the Administrative Agent may reasonably require to verify that MOP Midstream is duly organized or formed, validly existing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in good standing in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andjurisdiction of its organization;
(e) the Administrative Agent has received such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral owned by MOP Midstream is subject to no other Liens in favor of any Persons (other than Permitted Liens) or evidence that releases of such other Liens shall be filed contemporaneously with or after the Eleventh Amendment Effective Date;
(f) the Administrative Agent has received an opinion from Sidley Austin LLP, counsel to the Loan Parties, in form and substance satisfactory to Administrative Agent, with respect to the Guaranty and other Collateral Documents executed by MOP Midstream;
(g) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that, after giving effect to this Eleventh Amendment, (i) the representations and warranties set forth contained in Section 7 hereof Article V of the Credit Agreement are true and correct in all material respects on and as of such date (unless such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (ii) no Default or Event of Default has occurred and is continuing as of such date;
(h) the date hereofBorrower has paid any fees, including payment of reasonable Attorney Costs of the Administrative Agent, due and payable on the Eleventh Amendment Effective Date; and
(i) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Sixth Amendment (including the amendments set forth contained in Section 2 1 and the waiver contained in Section 2; provided that the direction contained in Section 11 shall become effective on the date that the Collateral Agent shall have received a signed counterpart of this AmendmentSixth Amendment from the Borrower, Parent, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, Consenting Lenders and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Administrative Agent) is subject to the satisfaction (or waiver) of the following conditions precedent:(the date of satisfaction (or waiver) of such conditions being referred to herein as the “Sixth Amendment Effective Date”):
(a) this Sixth Amendment shall have been duly executed by, and the Administrative Agent shall have received each a signed counterpart of this Sixth Amendment from, the followingBorrower, Parent, the Consenting Lenders and the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method);
(b) the Approved Sale Investor Equity Contribution Documents shall have been amended in form and substance reasonably satisfactory to the Administrative Agent:Consenting Lenders;
(ic) a counterpart the Borrower shall have paid, or substantially concurrently with the Sixth Amendment Effective Date shall pay (or cause to be paid), all reasonable and documented out-of-pocket fees, charges and disbursements due and payable under the Loan Documents (including, for the avoidance of this doubt, under the amended Section 10.04(b) set forth in Section 1 hereto) on or prior to the Sixth Amendment executed by the BorrowersEffective Date (including fees, charges and disbursements of counsel to the Administrative Agent, and the Lenders,
(ii) amended and restated Notesconsisting of White & Case LLP, executed by the Borrowers,
(iii) a joinder counsel to the Security AgreementCollateral Agent, executed by the New Borrowers, together with such stock powers or other agreements or instruments consisting of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S& ▇▇▇▇▇▇ LLP, and counsel to the New Borrowers,
(viii) a copy Lenders, consisting of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true Milbank LLP and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, PedersoliGattai; and
(xd) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers this Sixth Amendment and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties waiver set forth in Section 7 hereof shall be true 2, no Default or Event of Default is existing on and correct in all material respects as of the date hereofSixth Amendment Effective Date. The Administrative Agent (acting at the direction of the Consenting Lenders) shall notify the Collateral Agent in writing (with email by the Administrative Agent’s counsel to the Collateral Agent’s counsel being sufficient) of the occurrence of the Sixth Amendment Effective Date, which determination the Collateral Agent shall be entitled to conclusively rely on.
Appears in 1 contract
Sources: Credit Agreement (Coupang, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the first date (such date being referred to as the “Amendment No. 7 Effective Date”, subject to the satisfaction which date is November 30, 2016) when each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered by (i) the Borrower, (ii) Holdings, (iii) the MLP, (iv) Consenting Lenders constituting the Required Lenders and (v) the Administrative Agent.
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 7 Effective Date and addressed to the Administrative Agent and each of the followingLenders, in form and substance reasonably satisfactory to the Administrative Agent:.
(c) The Administrative Agent shall have received (i) a counterpart certificates of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
good standing (ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreementextent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Credit Party as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to perfect its Lien on any Collateral to the extent required under the Security Agreement,
act as a Responsible Officer in connection with this Amendment and (ivii) a certificate certificate, dated as of the secretaryAmendment No. 7 Effective Date, assistant secretary or other signed by a Responsible Officer of each New Borrower certifying as to the incumbency and genuineness Borrower, confirming satisfaction of the signature conditions set forth in Sections 3(d) and (f) of each officer this Amendment.
(d) The representations and warranties of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority each other Credit Party contained in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 8 of the Credit Agreement with respect (as amended hereby) or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 7 Effective Date, except to the New Borrowersextent that such representations and warranties specifically refer to an earlier date, together with loss payable in which case they shall be true and lender endorsements correct in favor all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of the Administrative Agent with respect to all insurance policies covering Collateral;such earlier date.
(vie) Payment by the results Borrower of UCC Lien searches showing all financing statements reasonable fees and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable expenses due to the Administrative Agent Agent, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the legal fees and reflecting no Liens against any expenses of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,Administrative Agent).
(viiif) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after After giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than or Event of Default exists, or would result from the Specified Default) shall have occurred and be continuing, and since the effective date effectiveness of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofthis Amendment.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Second Amendment shall be become effective as of the date (such date being referred to as the “Second Amendment Effective Date”) when, subject to the satisfaction and only when, each of the following conditions precedentprecedent shall have been satisfied:
(a) the The Administrative Agent (or its counsel) shall have received from each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
party hereto either (i) a counterpart of this Second Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
signed on behalf of such party or (ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder written evidence satisfactory to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent (which may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,include facsimile or other electronic image scan transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(ivb) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the The Administrative Agent with respect to all insurance policies covering Collateral;
shall have received the favorable written opinion (vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable addressed to the Administrative Agent and reflecting no Liens against any the Lenders and dated the Second Amendment Effective Date) of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S& ▇▇▇▇▇▇ LLP▇, PLLP, special counsel to for the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the Subsidiary Guarantors, covering such other matters relating to the Company, this Second Amendment, the other Loan Documents or the transactions contemplated by this Amendment;
(b) Amendment and the other Loan Documents as the Administrative Agent or the Lenders shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received at least five Business Days in advance such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the authority of the Company to enter into this Amendment and any other legal matters relating to the Company, this Amendment, the other Loan Documents or the transactions contemplated by this Amendment and the other Loan Documents, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) A certificate of each Subsidiary Guarantor, signed on behalf of such Subsidiary Guarantor, certifying to the continuing full force and effect, both immediately before and after the Second Amendment Effective Date, of the Guarantee Agreement.
(e) The representations and warranties set forth in Article 4 hereto and in the Credit Agreement shall be true and correct on and as of the Second Amendment Effective Date.
(f) No Default shall have occurred and be continuing both immediately before and after the Second Amendment Effective Date.
(g) The Administrative Agent shall have received (i) all accrued and unpaid interest and fees owing to the Exiting Lenders and Continuing Lenders as of the Second Amendment Effective Date and (xii) all documentation fees and other information that is required by regulatory authorities under Anti-Money Laundering Lawsamounts due and payable on or prior to the Second Amendment Effective Date, including, without limitationto 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 of the PATRIOT Act Borrowers under the Credit Agreement, under this Second Amendment or under any other Loan Document.
(h) The Administrative Agent shall have received such documentation and information as is reasonably requested by any Lender about the Borrowers and the Subsidiary Guarantors in respect of applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under including without limitation the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofUSA PATRIOT Act.
Appears in 1 contract
Sources: Credit Agreement (Valspar Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Amendment is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of such satisfaction or waiver being the “Amendment No. 1 Effective Date”):
(a) the Administrative Agent shall have received each copies of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment duly executed by the BorrowersBorrower, the Parent Guarantor, the Administrative Agent, each of the Lenders and each L/C Issuer;
(b) the Administrative Agent shall have received (i) a favorable opinion of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, New York counsel to the Borrower and the Parent Guarantor and (ii) a favorable opinion of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Borrower and the Parent Guarantor, each addressed to the Administrative Agent and the Lenders,;
(iic) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with Administrative Agent shall have received such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer authorized to perfect its Lien on any Collateral to act as a Responsible Officer in connection with this Amendment and the extent required under the Security Agreement,other Loan Documents;
(ivd) a the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, or other comparable organizational instrument of the secretary, assistant secretary or other Parent Guarantor and the Borrower to be filed with the State Department of Assessments and Taxation of Maryland;
(e) the Administrative Agent shall have received copies certified by a Responsible Officer of each New Borrower certifying as to such Person of (i) the incumbency and genuineness by-laws or operating agreement (or the equivalent governing documents) of the signature of each officer of such New Borrower executing Parent Guarantor and the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and (ii) all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws necessary resolutions or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted other action taken by the board of directors or comparable governing body of such New Borrower authorizing the Parent Guarantor to authorize the execution, delivery and performance of this Amendment by the Parent Guarantor and the Borrower;
(f) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and the Parent Guarantor is validly existing, in good standing and qualified to engage in business in its state of organization and 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 do so could not reasonably be expected to have a Material Adverse Effect;
(g) the Administrative Agent shall have received a certificate, duly executed by a Responsible Officer, certifying that (i) the Merger and the Conversion has occurred or shall occur substantially simultaneously with the effectiveness of this Amendment and attaching a fully executed copy of the Merger Agreement; (ii) the Parent Guarantor and the Borrower have received all approvals, consents and waivers, and have made or given all necessary filings and notices as shall be required to consummate the Reorganization, the Merger, the Conversion and the other Loan Documents to transactions contemplated hereby, which it is a party, do not and (D) certificates will not as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Amendment No. 1 Effective Date after giving effect to the joinder consummation of the New Borrowers Merger and the Conversion (a) contravene the terms of any of such Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Loan Party is party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject; or (c) violate any Law; except in each case referred to in subclause (b) or (c), to the extent such conflict, breach, contravention or violation, or creation of any such Lien or required payment, could not reasonably be expected to have a Material Adverse Effect; and (iii) as of the Amendment No. 1 Effective Date, immediately following the Reorganization, the Merger, the Conversion and the other transactions contemplated by this Amendmenthereby, the Borrower shall be a Wholly-Owned Subsidiary of the Parent Guarantor;
(bh) the Lenders Borrower and the Parent Guarantor shall have received at least five Business Days in advance of provided to the Effective Date (x) all Administrative Agent and the applicable Lender the documentation and other information reasonably requested in writing by the Administrative Agent or such Lender at least ten Business Days prior to the Amendment No. 1 Effective Date that is required by satisfies all requirements of regulatory authorities under Antiapplicable to such Lender and such Lender’s internal policies and procedures in connection with applicable “know your customer” and anti-Money Laundering Lawsmoney-laundering rules and regulations, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsPatriot Act, and in each case at least five Business Days prior to the Amendment No. 1 Effective Date;
(yi) if any New to the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Person shall have delivered to the Administrative Agent, and any Lender reasonably requesting, in writing at least ten (10) Business Days prior to the Amendment No. 1 Effective Date, the same, a Beneficial Ownership Certification in relation to such New the Borrower;, in each case at least five Business Days prior to the Amendment No. 1 Effective Date; and
(cj) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs all fees and expenses referred (including fees and expenses of counsel for the Administrative Agent) due and payable in Section 12.3 of the Credit Agreement, connection with this Amendment; provided that invoices for such fees and expenses have been presented to the extent invoiced on or Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofAmendment No. 1 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the Effective Date, subject to date first above written (the satisfaction of "EFFECTIVE DATE") on the first day when the following conditions precedenthave been satisfied:
(a) This Amendment shall have been executed and delivered by Borrower, the Administrative Lenders, the Agent and the Co-Agent;
(b) The Swing Line Notes shall have been executed by Borrower and delivered to the Collateral Agent;
(c) The Borrower Security Agreement and Subsidiary Security Agreement, together with accompanying agreements and UCC-1 financing statements, shall have been executed by Borrower and the Domestic Subsidiaries of Borrower, as the case may be, and delivered to the Collateral Agent;
(d) The Domestic Pledge Agreement, together with all original stock certificates referenced therein and appropriately completed stock powers executed in blank, shall have been executed by Borrower and any Domestic Subsidiaries of Borrower that are parties thereto, as the case may be, and delivered to the Collateral Agent;
(e) The Agent shall have received each certificates of the following, in form Secretary or Assistant Secretary of Borrower and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, each Domestic Subsidiary attaching and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate certifying copies of the secretary, assistant secretary or other Responsible Officer resolutions of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board their respective boards of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan all Credit Documents to which it is be executed and delivered by Borrower and its Domestic Subsidiaries pursuant to the terms of this Amendment;
(f) The Agent shall have received examination reports from the Uniform Commercial Code, judgment, and tax lien records of the jurisdictions of the principal places of business and chief executive offices of Borrower and its Domestic Subsidiaries and those jurisdictions where any tangible personal property of Borrower and its Domestic Subsidiaries are located, reflecting no Liens other than those expressly permitted by the Credit Agreement;
(g) The Agent shall have received copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any applicable law or by any material contractual obligation of Borrower or any of its Subsidiaries, in connection with the execution, delivery, performance, validity and enforceability of this Amendment and the Credit Documents being executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect;
(h) The Agent shall have received a partycertificate of Borrower and each Domestic Subsidiary, as the case may be, dated as of the date hereof, signed by the Secretary or an Assistant Secretary of Borrower or such Subsidiary, as the case may be, certifying (i) as to the names, true signatures and incumbency of the officer or officers of Borrower or such Subsidiary authorized to execute and deliver this Amendment and each other Credit Document being executed and delivered pursuant to the requirements of this Amendment, and (Dii) certificates that Borrower's or such Subsidiary's articles or certificate of incorporation and by-laws attached to such certificate have not been amended or modified and are in full force and effect as of a recent the date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateralhereof;
(vii) The Agent shall have received the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an favorable opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇& ▇▇▇▇▇▇ S▇▇▇▇▇▇ LLPL.L.P., counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true Borrower and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect its Domestic Subsidiaries addressed to the joinder of Agent and Collateral Agent, the New Borrowers Co-Agent, and the other Lenders, covering such matters relating to Borrower and the Domestic Subsidiaries and the transactions contemplated by this Amendment and the Credit Documents being delivered pursuant to this Amendment, as the Lenders may reasonably request;
(bj) Borrower shall have paid to the Lenders Agent, for the benefit of each Lender, a total amendment fee equal to $75,000, payable to each Lender in the amount of $15,000;
(k) The Agent shall have received at least five Business Days in advance of stock certificate(s) representing the Effective Date (x) all documentation and other information that is required by regulatory authorities under AntiPledged Stock with respect to Vari-Money Laundering LawsLite Asia, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;Inc.; and
(cl) the Administrative The Agent shall have received payment or evidence of payment by the Borrowers of the in full from Borrower for all outstanding costs and expenses referred in Section 12.3 of required to be paid or reimbursed by Borrower under the Credit Agreement, to including without limitation, all professional fees and expenses of counsel for the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred Agent and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofCollateral Agent.
Appears in 1 contract
Conditions of Effectiveness. The amendments effectiveness of this Amendment and the amendment of the Existing Credit Agreement set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, herein are subject to the satisfaction of the following conditions precedent:precedent (the date on which all of such conditions shall first be satisfied (or waived), which in the case of clause (b) may be substantially concurrent with the satisfaction of the other conditions specified below, the “Amendment Effective Date”):
(a) the The Administrative Agent shall have received each Agent’s (or its counsel’s) receipt of copies of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by (i) the Borrowers, the Administrative AgentGuarantors and all Revolving Credit Lenders under the Existing Credit Agreement (constituting the Required Lenders thereunder), and (ii) the 2021 New Revolving Credit Lenders,; or, as to any of the foregoing Lenders or 2021 New Revolving Credit Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment;
(ii) amended and restated Notes, executed by the Borrowers,Notes payable to the order of the Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a) of the Amended Credit Agreement;
(iii) certified copies of the resolutions of the boards of directors (or the equivalent thereof or a joinder senior officer thereof) of each of the Borrowers and each Guarantor approving the execution and delivery of the Amendment and each other applicable Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Security AgreementAmendment, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,Transactions and each other Loan Document;
(iv) (A) a copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State (or other appropriate Governmental Authority) of the jurisdiction of its incorporation or organization (to the extent applicable and available in the relevant jurisdiction) (in case of Luxembourg Loan Parties, a copy of the applicable up-to-date consolidated articles of association, an electronic certificate of non-inscription of insolvency proceedings issued by the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés, Luxembourg) in Luxembourg (the “RCS”) as at a date no earlier than one (1) Business Day prior to the Amendment Effective Date and an up-to-date, true and complete electronic excerpt of the RCS as at a date no earlier than one (1) Business Day prior to the Amendment Effective Date (or such other date reasonably acceptable to the Administrative Agent), as the case may be, thereof as being a true and complete copy thereof or (B) a certificate signed on behalf of each Loan Party certifying no changes to any of such Loan Party’s charters or other constitutive documents since the Amendment No. 4 Effective Date, in lieu of the foregoing;
(v) a certificate of the secretary, assistant secretary or other each Loan Party signed on behalf of such Loan Party by a Responsible Officer (and with respect to any Luxembourg Loan Party, by a manager (gérant)), dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of each New Borrower the Amendment Effective Date), certifying as to (A) the incumbency accuracy and genuineness completeness of the signature of each officer charter (or other applicable formation document or the equivalent thereof in the applicable jurisdiction) of such New Borrower executing Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document or the equivalent thereof in the applicable jurisdiction) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in clause (iii) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party (and, in the case of a Luxembourg Loan Party, that it is not subject to insolvency proceedings such as bankruptcy (faillite), compulsory liquidation (liquidation judiciaire), voluntary liquidation (liquidation volontaire) winding-up, moratorium, composition with creditors (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de la faillite), fraudulent conveyance, general settlement with creditors, reorganization or similar order or proceedings affecting the rights of creditors generally and any proceedings in jurisdictions other than Luxembourg having similar effects); (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and certifying that attached thereto is a trueas of the Amendment Effective Date, correct before and complete copy after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; (AE) the articles absence of incorporation any event occurring and continuing, or comparable organizational documents resulting from any of such New Borrower the Borrowings or the issuance of any of the Letters of Credit to be made on the Amendment Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default; and all amendments thereto, certified as (F) the absence of a recent date by the appropriate Governmental Authority in its jurisdiction of formationMaterial Adverse Effect since December 31, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral2020;
(vi) a certificate of the results Secretary or an Assistant Secretary (or the equivalent thereof) of UCC Lien searches showing all financing statements each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign the Amendment and the other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,delivered thereunder;
(vii) an opinion a certificate, in substantially the form of TExhibit I to the Existing Credit Agreement attesting to the Solvency of Dana and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the transactions contemplated hereby), from its Chief Financial Officer or other financial officer;
(viii) favorable opinions of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ P▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S▇, LLP, counsel to the Loan Parties, (B) ▇▇▇▇▇▇ ▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan and Ohio counsel to the Loan Parties, and (C) Dentons Luxembourg, counsel to the New Borrowers,
(viii) a copy of Luxembourg Loan Parties, in each Eligible Asset Lease Agreement for each Eligible Asset case dated as of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Amendment Effective Date after giving effect to and addressing such matters as the joinder Administrative Agent may reasonably request, including in respect of the New Borrowers and the other transactions contemplated by this Amendmentcollateral;
(b) the The Revolving Credit Lenders shall have received at least five Business Days in advance of two (2) days prior to the Amendment Effective Date (x) Date, all documentation and other information that is required by bank regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, regulations and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation including without limitation, the Patriot Act to such New Borrowerthe extent reasonably requested of the Borrowers at least four (4) days prior to the Amendment Effective Date;
(c) the Administrative Agent Since December 31, 2020, there shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall not have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(ed) Dana shall have paid all costs, fees and expenses (including, without limitation, legal fees and expenses in full in cash to the representations extent due and warranties set forth in Section 7 hereof shall be true payable for which Dana has received an invoice at least one (1) day prior to the Amendment Effective Date) and correct in all material respects as of other compensation payable to the date hereofAgents or the Lender Parties.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this First Amendment (including the amendments set forth contained in Section 2 and agreements contained in Sections 3 and 4) shall be subject to receipt by the Administrative Agent of duly executed and delivered counterparts of this AmendmentFirst Amendment that, when taken together, bear the joinder signatures of the New Borrowers pursuant (i) Borrower, (ii) the Required Lenders, (iii) the Revolving Credit Lenders constituting at least the Required Class Lenders with respect to Section 3 of this Amendmentthe Revolving Credit Facility, (iv) the Replacement Lender and (v) all Subsidiary Guarantors, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, subject to the satisfaction (or written waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) the The Administrative Agent shall have received favorable opinions of (i) Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (ii) the general counsel of the Borrower, in each of case, in a form reasonably satisfactory to the Administrative Agent and addressed to the Administrative Agent and each Lender.
(b) The Administrative Agent shall have received the following, each properly executed by a Responsible Officer of the signing Loan Party (in the case of items required to be executed on behalf of a Loan Party), each dated the First Amendment Effective Date or, in the case of certificates of governmental officials, a recent date before the First Amendment Effective Date and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart such certifications of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers resolutions or other agreements or instruments action and incumbency certificates of transfer Responsible Officers of each Loan Party as the Administrative Agent may request to perfect its Lien on any Collateral to reasonably require evidencing the extent required under the Security Agreement,
(iv) a certificate identity, authority and capacity of the secretary, assistant secretary or other each Responsible Officer of each New Borrower certifying authorized to act as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority Responsible Officer in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment Agreement and the other Loan Documents to which it such Loan Party is a party or is to be a party, ;
(ii) such documents and (D) certificates certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is organized or formed including a certificate as of a recent date of the good standing or active status, as applicable, of such New Borrower each of the Loan Parties under the laws of its jurisdiction of organization,
, from the appropriate Governmental Authority of such jurisdiction (v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements where available in favor of the Administrative Agent with respect to all insurance policies covering Collateralsuch jurisdiction);
(viiii) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any certificate signed by a Responsible Officer of the Property of the New Borrower other than Permitted Liens,
certifying that: (vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(eA) the representations and warranties set forth of each Loan Party contained in Section 7 hereof shall be Article V of the Amended Credit Agreement or any other Loan Document are true and correct in all material respects on and as of the First Amendment Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date); provided, that, to the date hereofextent that such representations and warranties are qualified by materiality, material adverse effect or similar language, they are true and correct in all respects, (B) no Default or Event of Default exists or would result from such proposed First Amendment Effective Date Transactions (as defined in the Amended Credit Agreement) and (C) the condition specified in clause (g) below has been satisfied; and
(iv) at least three Business Days prior to the First Amendment Effective Date, all documentation and other information required by regulatory authorities with respect to the Loan Parties reasonably requested by the Lenders at least 10 Business Days prior to the First Amendment Effective Date under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, which documentation and other information the Administrative Agent shall promptly deliver to any requesting Lender.
(A) All fees required to be paid by the Borrower to the Agents and Arrangers on or before the First Amendment Effective Date shall have been paid and (B) all out-of-pocket expenses of the Agents (including the reasonable fees, charges and disbursements of counsel to the Agents) required to be paid or reimbursed by the Borrower on the First Amendment Effective Date shall have been paid, to the extent invoiced at least three Business Days prior to the First Amendment Effective Date.
(d) Substantially concurrently with the effectiveness of this First Amendment, each (A) Non-Consenting Revolving Credit Lender shall have received payment of all accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the Replacement Lender (and of any amounts payable by the Borrower then due pursuant to Sections 3.01 and 3.04 of the Credit Agreement from the Borrower) and (B) Non-Consenting Term Lender shall have received payment of all amounts payable to such Non-Consenting Term Lender hereunder and under the other Loan Documents from the Replacement Lender (and of any amounts payable by the Borrower then due pursuant to Sections 3.01 and 3.04 of the Credit Agreement from the Borrower).
(e) The Borrower shall have, substantially concurrently with the effectiveness of this First Amendment, issued the 2025 Senior Notes (as defined in the Amended Credit Agreement) and received the net proceeds in respect thereof.
(f) The Borrower shall have, substantially concurrently with the effectiveness of this First Amendment, made the First Amendment Effective Date Prepayment (as defined in the Amended Credit Agreement).
(g) The Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenant set forth in Section 7.08 of the Amended Credit Agreement, recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.01 of the Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Time Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the first date (such date being referred to as the “Amendment No. 5 Effective Date”, subject to the satisfaction which date is October 13, 2015) when each of the following conditions precedentshall have been satisfied:
(a) the The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered by (i) the Borrower, (ii) Holdings, (iii) the MLP, (iv) Consenting Lenders constituting the Required Lenders and (v) the Administrative Agent.
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 5 Effective Date and addressed to the Administrative Agent and each of the followingLenders, in form and substance reasonably satisfactory to the Administrative Agent:.
(c) The Administrative Agent shall have received (i) a counterpart certificates of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
good standing (ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreementextent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, executed by the New Borrowers, together with such stock powers certificates of resolutions or other agreements or instruments action, incumbency certificates and/or other certificates of transfer Responsible Officers of each Credit Party as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to perfect its Lien on any Collateral to the extent required under the Security Agreement,
act as a Responsible Officer in connection with this Amendment and (ivii) a certificate certificate, dated as of the secretaryAmendment No. 5 Effective Date, assistant secretary or other signed by a Responsible Officer of each New Borrower certifying as to the incumbency and genuineness Borrower, confirming satisfaction of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party conditions set forth in Sections 3(e) and certifying that attached thereto is a true, correct and complete copy of (Af) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,Amendment.
(vd) copies Payment of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable reasonable fees and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable expenses due to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇Lynch, Pierce, ▇▇▇▇▇▇ S▇& ▇▇▇▇▇ LLP, counsel Incorporated (the “Arranger”) (as agreed to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) writing between the Administrative Agent shall have received payment or evidence of payment by and/or the Borrowers of Arranger and the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andBorrower).
(e) the The representations and warranties set forth of the Borrower and each other Credit Party contained in Section 7 hereof 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date hereofAmendment No. 5 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) After giving effect to this Amendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
Appears in 1 contract
Conditions of Effectiveness. 3.1 The amendments consent set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, Article I hereof shall be become effective as of the date (the “Consent Effective Date”) when, subject to the satisfaction of the following conditions precedent:
(a) and only when, the Administrative Agent shall have received an executed counterpart hereof from each of the followingCredit Parties and the Required Lenders.
3.2 The amendments set forth in Article II hereof shall become effective as of the date (the “Second Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received evidence reasonably satisfactory to it that the closing of the Redomestication Transactions in accordance with the Scheme of Arrangement has occurred without any amendment or modification thereto that, in the reasonable determination of the Administrative Agent, would be adverse in any material respect to the rights or interests of the Lenders, including without limitation, copies of all court orders and governmental certificates and orders sanctioning the consummation of the Redomestication Transactions;
(b) The Administrative Agent shall have received a legal opinion from counsel to the Credit Parties, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with addressing such stock powers or other agreements or instruments of transfer matters as the Administrative Agent may request to perfect its Lien on any Collateral reasonably request;
(c) The Administrative Agent shall have received a certificate, signed by a Responsible Officer of each Credit Party, in form and substance reasonably satisfactory to the extent required under the Security Agreement,Administrative Agent, certifying that no Default or Event of Default exists, both immediately before and after giving effect to this Second Amendment;
(ivd) The Administrative Agent shall have received a certificate of the secretary, an assistant secretary or other Responsible Officer appropriate officer of each New Borrower Swiss Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the Articles of Association and all amendments thereto of Swiss Holdings, certified as of a recent date by the appropriate Governmental Authority of its jurisdiction of organization, and that the same has not been amended since the date of such certification, and (ii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of Swiss Holdings authorizing the execution, delivery and performance of this Second Amendment and its joinder to the Unsecured Credit Agreement as a Guarantor, and as to the incumbency and genuineness of the signature of each officer of such New Borrower Swiss Holdings executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation this Second Amendment or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property other Credit Documents, and attaching all such copies of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations documents described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendmentabove;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) On the Second Amendment Effective Date, the representations and warranties set forth in Section 7 Article IV hereof shall be true and correct in correct; and
(f) The Credit Parties shall have paid all material respects as reasonable out-of-pocket costs and expenses of the date hereofAdministrative Agent in connection with the preparation, negotiation, execution and delivery of this Second Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)
Conditions of Effectiveness. The effectiveness of this Amendment (including the amendments set forth contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, 1 and the limited waiver set forth agreements contained in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, 2) are subject to the satisfaction (or waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “Third Amendment Effective Date”):
(a) this Amendment shall have been duly executed by the Borrower, Holdings, the Subsidiary Guarantors, the Replacement Lender and the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Administrative Agent, and the Initial Term Lenders under the Credit Agreement consisting of Initial Term Lenders holding more than 50% of the aggregate outstanding principal amount of the Initial Term Loans immediately prior to the Third Amendment Effective Date;
(b) the Administrative Agent shall have received each fully executed and delivered Lender Consents from Continuing Lenders and the Replacement Lender representing 100% of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate aggregate outstanding principal amount of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerInitial Term Loans;
(c) the Administrative Agent shall have received payment or evidence of payment a certificate signed by the Borrowers a Responsible Officer of the costs and expenses referred in Section 12.3 of the Credit Agreement, Borrower as to the extent invoiced on or prior to the date hereofmatters set forth in paragraphs (e) and (f) of this Section 3;
(d) no Default the Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify that (x) either (i) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization of such Loan Party certified by the relevant authority of its jurisdiction of organization and that such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended, repealed, modified or restated (except as attached thereto) since the date reflected thereon or (ii) the certificate or articles of incorporation, formation or organization of such Loan Party delivered on the Closing Date or the date such Loan Party became a Loan Guarantor, as applicable, to the Administrative Agent have not been amended, repealed, modified or restated and are in full force and effect, (y) either (i) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Third Amendment Effective Date and such by-laws or operating, management, partnership or similar agreement are in full force and effect or (ii) the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto delivered on the Closing Date or the date such Loan Party became a Loan Guarantor, as applicable, have not been amended, repealed, modified or restated and are in full force and effect and (z) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution and delivery of this Amendment and any related Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than the Specified Defaultas attached thereto) shall have occurred and be continuingare in full force and effect, and since (B) identify by name and title and bear the effective date signatures of the most officers, managers, directors or authorized signatories of such Loan Party authorized to sign this Amendment and (ii) a good standing (or equivalent) certificate as of a recent financial statements delivered pursuant to Section 7.1(a) date for such Loan Party from the relevant authority of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andits jurisdiction of organization;
(e) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(f) the representations and warranties of the Loan Parties set forth in Section 7 hereof shall be 4 of this Amendment are true and correct in correct;
(g) all material respects fees and expenses required to be paid hereunder or pursuant to that certain engagement letter dated as of August 1, 2017 (the date hereof“Engagement Letter”), by and among the Borrower and the Repricing Arrangers (as defined below), and any fee letter entered into by the Borrower and any party thereto shall have been paid in full in cash or will be paid in full in cash on the Third Amendment Effective Date;
(h) the Replacement Lender shall have executed and delivered the Master Assignment contemplated by Section 2 above and all conditions to the consummation of the assignments in accordance with Section 2 above shall have been satisfied and such assignments shall have been consummated; and
(i) the Borrower shall have, substantially concurrently with the effectiveness of this Amendment, paid to each Non-Consenting Lender, all accrued interest, fees and other amounts payable to such Non-Consenting Lender under any Loan Document with respect to the Initial Term Loans assigned by such Non-Consenting Lender under Section 2(c) above (other than principal and all other amounts paid to such Non-Consenting Lender under Section 2 above), if any, then due and owing to such Non-Consenting Lender under the Credit Agreement and the other Loan Documents (immediately prior to the effectiveness of this Amendment).
Appears in 1 contract
Sources: First Lien Credit Agreement (ATI Physical Therapy, Inc.)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this AmendmentThis Amendment shall become effective when, and the limited waiver set forth in Section 4 of this Amendmentonly when, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Datedate (the "AMENDMENT NO. 4 EFFECTIVE DATE") on which, subject to the satisfaction of the following conditions precedent:
(ax) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart counterparts of this Amendment executed by the BorrowersCompany and Lenders with aggregate Percentages of 51% or more or, the Administrative Agent, and as to any of the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder advice satisfactory to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect that such Lender has executed this Amendment, (y) simultaneously with the making of the Euro Term Loans C and the U.S. Term Loans C, the Company shall have paid all accrued and unpaid interest on its Lien on any Collateral U.S. Term Loans B, Euro Term Loans A and Euro Term Loans B to the extent required under Amendment No. 4 Effective Date, other than interest payable to each Lender with a Euro Term Loan C Commitment who has an outstanding Euro Term Loan A, Euro Term Loan B, or both, and each Lender with a U.S. Term Loan C Commitment who has an outstanding U.S. Term Loan B PLUS any loss or expense pursuant to SECTION 11.4 of the Security Agreement,Credit Agreement and (z) the Administrative Agent shall have additionally received all fees due and payable in connection with this Amendment No. 4, payment of all accrued fees and expenses of the Administrative Agent (including the reasonable and accrued fees of counsel to the Administrative Agent invoiced on or prior to the date hereof and all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified) and in sufficient Amendment No. 4 to Rayovac Credit Agreement copies for each Lender, in form and substance satisfactory to the Agent (unless otherwise specified):
(iva) a certificate A Notice of Borrowing in accordance with the requirements of SECTION 2.3 of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as Credit Agreement prior to the incumbency and genuineness Amendment No. 4 Effective Date with respect to the borrowing of the signature Euro Term Loans C and the U.S. Term Loans C on the Amendment No. 4 Effective Date except that the three Business Days notice requirement is hereby waived.
(b) Certified copies of each officer (i) the resolutions of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy Board of Directors of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of Company approving this Amendment and the other Loan Documents to which it is a party, matters contemplated hereby and thereby and (DB) certificates as of a recent date each Guarantor evidencing approval of the good standing or active status, as applicable, of such New Borrower under Consent and the laws of its jurisdiction of organization,
(v) matters contemplated hereby and thereby; PROVIDED that no German entity shall be required to deliver copies of insurance certificates describing resolutions unless resolutions are necessary pursuant to its Organization Documents and (ii) all insurance policies required by Section 7.6 of the Credit Agreement documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the New Borrowers, together with loss payable Consent and lender endorsements in favor the matters contemplated hereby and thereby.
(c) A certificate of the Administrative Agent with respect Secretary or an Assistant Secretary or director of the Company and each Guarantor certifying the names and true signatures of the officers of the Company and such Guarantor authorized to all insurance policies covering Collateral;
(vi) sign this Amendment and the results of UCC Lien searches showing all financing statements Consent and the other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as delivered hereunder and thereunder, PROVIDED that, in lieu of the foregoing, each German Entity shall deliver a date acceptable certified copy of its current excerpt of the commercial register file (HANDELSREGISTERAUSZUG) and a certified copy of the specimen signature (UNTERSCHRIFTENPROBE) currently filed with the commercial register of the representative of such Person who will execute, deliver and perform the Amendment, the Consent and the other documents to be delivered hereunder and thereunder, or other evidence of corporate authorization and incumbency satisfactory to the Administrative Agent and reflecting no Liens against any Agent.
(d) Counterparts of the Property of Consent appended hereto (the New Borrower "CONSENT"), executed by each Guarantor (other than Permitted Liens,the Company).
(viie) an A favorable opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇, ▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇, counsel for the Company, ROV Holding Inc., a Delaware corporation, Rovcal, Inc., a California corporation and each Remington Company that is a Domestic Subsidiary in form and substance satisfactory to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofAgent.
Appears in 1 contract
Sources: Credit Agreement (Rayovac Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, (a) This Amendment shall be become effective as of the Effective Date, subject to date first written above (the satisfaction of the following conditions precedent:
(a"AMENDMENT EFFECTIVE DATE") when the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment and the consent attached hereto executed by each of the followingLoan Parties (other than the Borrower) and Section 1 (except to the extent set forth in Section 2(b) below) shall become effective when, and only when, the Administrative Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart certified copies of (A) the resolutions of the Board of Directors of (1) the Borrower approving this Amendment executed by and the Borrowersmatters contemplated hereby and thereby and (2) each other Loan Party evidencing approval of the Consent and the matters contemplated hereby and thereby and (B) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Administrative Agent, Consent and the Lenders,matters contemplated hereby and thereby;
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary Secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness an Assistant Secretary of the signature of Borrower and each officer of such New Borrower executing the other Loan Documents to which it is a party and Party certifying that attached thereto is a true, correct and complete copy of (A) the articles names and true signatures of incorporation or comparable organizational documents the officers of such New the Borrower and all amendments thereto, certified as of a recent date by such other Loan Party authorized to sign this Amendment and the appropriate Governmental Authority in its jurisdiction of formationConsent and the other documents to be delivered hereunder and thereunder, (B) that no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body, or any third party to any agreements and instruments of any Loan Party is required for the bylaws due execution, delivery or comparable organizational documents performance by the Loan Parties of such New Borrower as in effect on the date of such certificationsthis Amendment, (C) resolutions duly adopted by that the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery representations and performance of warranties contained in this Amendment are true and correct as of the other Loan Documents to which it is a party, Amendment Effective Date and (D) certificates as of that no event has occurred and is continuing that constitutes a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering CollateralDefault;
(viiii) an amendment fee for the account of each Lender approving this Amendment on or before January 21, 2004 in an amount equal to 0.10% of the aggregate amount of each such Lender's Loans and Commitments; and
(iv) the results Borrower shall have paid all reasonable costs and expenses (including the reasonable fees, charges and disbursements of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable counsel to the Administrative Agent Agent) incurred in connection with the preparation, negotiation and reflecting no Liens against any execution of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;.
(b) Section 1(b) of this Amendment shall become effective as of the Lenders date (the "REPRICING AMENDMENT EFFECTIVE DATE") when (i) the Amendment Effective Date shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, occurred and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(cii) the Administrative Agent shall have received payment or evidence counterparts of payment this Amendment executed by the Borrowers Borrower and each Term Lender, or, as to any of the costs and expenses referred in Section 12.3 of the Credit AgreementTerm Lenders, advice satisfactory to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, Administrative Agent that such Term Lender has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereofexecuted this Amendment.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be effective as of September 24, 1999, so long as all corporate actions of Borrower and the Effective DateSignificant Subsidiaries taken in connection herewith and the transactions contemplated hereby shall be satisfactory in form and substance to Administrative Agent and Lenders, subject to the satisfaction and each of the following conditions precedentprecedent shall have been satisfied:
(a) the Administrative Agent shall have received each of the following, All reasonable out-of-pocket fees and expenses in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together connection with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a trueDocuments, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of including this Amendment and the Additional Security Documents, including legal and other Loan Documents professional fees and expenses incurred on or prior to which it is a party, and (D) certificates as of a recent the date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required this Amendment by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) or any Lender, including, without limitation, the results fees and expenses of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S& ▇▇▇▇▇▇ LLPP.C. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., counsel shall have been paid.
(b) Administrative Agent and each Lender shall have received each of the following, in form and substance satisfactory to Administrative Agent, Lenders and Administrative Agent's counsel:
(i) an opinion of PricewaterhouseCoopers, accountants for the Borrower and its Subsidiaries, with respect to the New Borrowers,fiscal year 1999 audited consolidated financial statements of the Borrower, which shall not be limited as to the scope of the audit or qualified as to the status of the Borrower and its Subsidiaries as a going concern;
(viiiii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset certificate of the New Borrowers,
Borrower certifying (ixA) true and correct copies of as to the accuracy in all Material Contractual Obligations described on Schedule 3.7 heretomaterial respects, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to this Amendment, the joinder of the New Borrowers Additional Security Documents, and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred Waiver in Section 12.3 1 hereof, of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in the Credit Agreement, this Amendment, the Additional Security Documents, and the other Loan Documents, and (B) that there exists no Default or Event of Default, after giving effect to this Amendment and the Waiver in Section 7 hereof shall be true 1 hereof, and correct the execution, delivery and performance of this Amendment and the Additional Security Documents will not cause a Default or Event of Default;
(iii) certified copies of resolutions of the boards of directors of the Borrower and each Significant Subsidiary authorizing the transactions contemplated by this Amendment and the Additional Security Documents;
(iv) the Borrower Security Agreement, the Subsidiary Security Agreement, the Aircraft Security Agreement, the Financing Statements, and any and all Collateral Requirements in all material respects connection with any of the foregoing (other than as set forth in Section 12 below);
(v) payment of the Amendment Fee;
(vi) an opinion of counsel to the Borrower and each Subsidiary addressed to the Lenders and in form and substance satisfactory to the Administrative Agent, dated as of the date hereof, and covering such matters incident to the transactions contemplated by this Amendment and the Additional Security Documents as the Administrative Agent or its counsel may reasonably request; and
(vii) such other documents, certificates and instruments as the Administrative Agent shall require prior to the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, This Amendment shall be become effective as of the date first written above (the “Effective Date”) when, subject to the satisfaction of the following conditions precedent:
and only when, (a) the Administrative Agent shall have received each all fees (including, without limitation, all upfront fees) payable by the Borrower pursuant to that certain proposal letter agreement, dated October 5, 2011, among Union Bank, the Borrower, TEP, UNS Gas and UNS Electric (the “Proposal Letter”), together with, to the extent invoiced, reimbursement or payment of the following, in form all reasonable fees and substance reasonably satisfactory out-of-pocket disbursements of counsel to the Administrative Agent:
(i) a counterpart Agent and other out-of-pocket expenses of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request required to perfect its Lien on any Collateral be reimbursed or paid by the Borrower pursuant to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formationProposal Letter, (Bb) the bylaws all requisite Governmental Authorities and third parties, if any, shall have approved or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing consented to the execution, delivery and performance by the Borrower of this Amendment and the other Loan Documents to which it is a partyAmended Agreement and the transactions contemplated thereby (collectively, and (Dthe “Transactions”) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable extent required and lender endorsements in favor of material (and the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing officesshall have received copies, such searches certified by an Authorized Officer to be as true, correct and complete and in full force and effect, of a date acceptable all such approvals and consents, which shall be in form and substance satisfactory to the Administrative Agent and reflecting the Lenders), no Liens against stay of any applicable regulatory approval shall have been issued and there shall be no litigation or governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on this Amendment, the Amended Agreement, any of the Property of other Loan Documents or the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsTransactions, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment received: (i) counterparts of this Amendment executed by all of the parties hereto (in sufficient quantity for each party to have a fully executed original), and (ii) all of the following documents, each document being dated the Effective Date unless otherwise specified below, in form and substance satisfactory to the Administrative Agent and in the number of originals or evidence of payment photostatic copies reasonably requested by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, Administrative Agent:
(A) a favorable written opinion (addressed to the extent invoiced on or prior Administrative Agent, the Issuing Banks and the Lenders) of (1) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, New York counsel for the Borrower, and (2) ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel for the Borrower, in each case covering such customary matters relating to this Amendment, the date hereofAmended Agreement and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions;
(dB) no Default (other than such documents and certificates as the Specified Default) shall have occurred Administrative Agent or its counsel may reasonably request relating to the organization, existence and be continuinggood standing of the Borrower, the authorization of the Transactions, and since any other legal matters relating to the effective date of Borrower, this Amendment, the most recent financial statements delivered pursuant Amended Agreement or the Transactions, all in form and substance satisfactory to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; andAdministrative Agent and its counsel;
(eC) a certificate (the statements in which shall be true), signed by an Authorized Officer, certifying that:
(1) the representations and warranties of the Borrower set forth in Section 7 hereof shall be this Amendment, the Amended Agreement and the other Loan Documents are true and correct on and as of the Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct as of such earlier date); and
(2) both before and after giving effect to this Amendment, no Default has occurred and is continuing;
(D) a certificate, signed by an Authorized Officer, confirming compliance with the conditions set forth in this Section 2; and
(E) copies of all material respects amendments to the TEP Loan Documents (including, without limitation, Amendment No. 1, dated as of the date hereof, to the TEP Credit Agreement), certified by an Authorized Officer as complete and correct and in full force and effect.
Appears in 1 contract
Conditions of Effectiveness. The amendments set forth in Section 2 effectiveness of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, Amendment is subject to the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received counterparts of (i) this Amendment duly executed by the Borrowers, the Lenders, the Issuing Bank, the Swingline Lender and the Administrative Agent and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the effective date of this Amendment) of (i) ▇▇▇▇▇ Day, counsel for the Loan Parties other than the Dutch Borrower and (ii) ▇▇▇▇▇ Day, counsel for the Dutch Borrower, each of the following, in form and substance reasonably satisfactory to the Administrative Agent:Agent and, in each case, covering such matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(ic) a counterpart 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 Loan Parties, the authorization of this Amendment executed and the Transactions and any other legal matters relating to such Loan Parties, the Loan Documents, this Amendment or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the effective date of this Amendment, signed by the BorrowersPresident, a Vice President or a Financial Officer of the Company, certifying that, after giving effect to this Amendment, the Borrowers are in compliance with paragraphs (a) and (b) of Section 4.02 of the Credit Agreement.
(e) The Administrative Agent shall have received, for the account of each Lender party hereto that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, and an upfront fee in an amount equal to the amount previously disclosed to the Lenders,.
(iif) amended The Administrative Agent shall have received all fees and restated Notes, executed by the Borrowers,
(iii) a joinder other amounts due and payable on or prior to the Security Agreementdate of this Amendment, executed by the New Borrowersincluding, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate invoiced, payment and/or reimbursement of the secretaryAdministrative Agent’s and its Affiliates’ reasonable out-of-pocket fees and expenses (including, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency extent invoiced, reasonable fees, charges and genuineness disbursements of counsel for the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (AAdministrative Agent) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of connection with this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,Documents.
(vg) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the The Administrative Agent shall have received payment or evidence made such reallocations of payment by the Borrowers each Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement as amended hereby. The Borrowers hereby agree to compensate each Lender for any and all losses, costs and expenses referred incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans and the reallocation described in this clause (g), in each case on the terms and in the manner set forth in Section 12.3 2.16 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Sources: Credit Agreement (MATERION Corp)
Conditions of Effectiveness. The amendments set forth in Section 2 of this Amendment, This Amendment shall become effective on the joinder of date hereof (the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the “Amendment No. 5 Effective Date, subject to ”) upon the satisfaction of the following conditions precedent:
(a) the The Administrative Agent shall have received counterparts to this Amendment, duly executed by each of the followingBorrower, in form and substance reasonably satisfactory to the Administrative Agent:
Extending Lender, Lenders constituting Required Lenders (i) a counterpart including for the avoidance of this Amendment executed by doubt, the BorrowersExtending Lender), the Administrative Agent, the Issuing Bank and the Lenders,Swingline Lender;
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 5 Effective Date) of (i) Sidley Austin LLP, counsel for the Loan Parties, and (ii) amended and restated Notesin-house legal counsel for the Loan Parties, executed by the Borrowers,
(iii) a joinder in each case, covering such matters relating to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer Loan Parties and this Amendment as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,shall reasonably request;
(ivc) The Administrative Agent shall have received certificates of the secretary or an assistant secretary of each Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of the secretarysuch Loan Party), assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness (i) specimen signatures of the signature of each officer of such New Borrower executing the persons authorized to execute Loan Documents to which it such Loan Party is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formationparty, (Bii) the bylaws or comparable organizational documents copies of such New Borrower as in effect on the date resolutions of such certifications, (C) resolutions duly adopted by the board of directors or comparable other appropriate governing body of such New Borrower Loan Party authorizing the execution, execution and delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(viii) copies of insurance certificates describing all insurance policies required by Section 7.6 of such Loan Party’s constituent organizational documents or a statement that such constituent organizational documents have not changed since the Credit Agreement with time each Loan Party last provided a certification in respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateralthereof;
(vid) The Administrative Agent shall have received, for each Loan Party, a certificate of good standing (or the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in equivalent) from the appropriate filing offices, governing agency of such searches to be as Loan Party’s jurisdiction of a date acceptable organization (to the Administrative Agent and reflecting no Liens against any extent the concept of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Amendmentgood standing is applicable in such jurisdiction);
(be) the Lenders The Administrative Agent shall have received received, at least five three Business Days in advance of prior to the Amendment No. 5 Effective Date (x) Date, all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, regarding the PATRIOT Act and any Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, and (y) if any New including the Patriot Act, to the extent requested in writing of the Borrower qualifies as a “legal entity customer” under at least 10 Business Days prior to the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;Amendment No. 5 Effective Date; and
(cf) the The Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses referred of counsel for the Administrative Agent) in Section 12.3 of connection with this Amendment and any other Loan Document, and for which invoices have been presented at least one (1) Business Day prior to the Credit AgreementAmendment No. 5 Effective Date, in each case, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to payment is required by Section 7.1(a9.03(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties set forth in Section 7 hereof shall be true and correct in all material respects as of the date hereof.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Second Amendment (including the amendments set forth contained in Section 1 hereof and agreements contained in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall be effective as of the Effective Date, hereof) are subject to the satisfaction of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) this Second Amendment shall have been duly executed by the Administrative Borrower, each Guarantor, the Lenders, the Incremental Lenders, the Facility Agent and the Security Trustee (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Facility Agent;
(b) a duly executed original of a Guarantor Accession Agreement made between the Additional Guarantor and the Facility Agent;
(c) the Facility Agent shall have received each a Borrowing Request in respect of the following, in form and substance reasonably satisfactory Loans under this Second Amendment by no later than the applicable time required pursuant to Section 2.3 of the Administrative Credit Agreement (or such shorter period as may be agreed by the Facility Agent:);
(d) the Facility Agent shall have received (i) a counterpart certificate of this Amendment executed by an officer or an officer of the Borrowerssole member, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent case may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretarybe, assistant secretary or other Responsible Officer of each New Borrower Security Party dated the Second Amendment Effective Date, certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying (A) either (i) that attached thereto is a true, correct true and complete copy of (A) the articles of incorporation or comparable organizational documents each Organizational Document of such New Borrower Security Party, or (ii) that the copies of such Security Party’s Organizational Documents as previously certified and all amendments theretodelivered to the Facility Agent on the Closing Date (or, certified if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the Second Amendment Effective Date, without modification or amendment since such prior date of a recent date by the appropriate Governmental Authority in its jurisdiction of formationcertification and delivery, (B) the bylaws or comparable organizational documents that attached thereto is a true and complete copy of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board Board of directors Directors or comparable governing body sole member of such New Borrower Security Party authorizing the execution, delivery and performance of this Second Amendment and the other Loan Documents (including, if applicable, as amended by this Second Amendment) to which it such Security Party is a partyparty and, in the case of the Borrower, the borrowing of the Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (DC) certificates as to the incumbency and specimen signature of each officer executing this Second Amendment and any Loan Document or any other document delivered in connection herewith or therewith on behalf of such Security Party, (ii) a certificate as to the goodstanding of each Security Party as of a recent date of reasonably near to the good standing or active status, as applicable, of such New Borrower Second Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of its jurisdiction of organization,
incorporation and (viii) copies an original or certified copy power of insurance certificates describing all insurance policies required by Section 7.6 attorney under which any Loan Document is executed on behalf of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collaterala Security Party;
(vie) the results Facility Agent shall have received, on behalf of UCC Lien searches showing all financing statements itself and the other documents or instruments on file against each New Borrower in the appropriate filing officesFinance Parties, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an favorable written opinion of T(i) ▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇ S▇▇▇▇▇▇ LLP, counsel to for the New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers Facility Agent and the other transactions contemplated Finance Parties, (ii) ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Security Parties, and (iii) any other legal advisors on matters of the law of such jurisdiction as the Facility Agent may require, in each case (A) dated the Second Amendment Effective Date (or such other date agreed by the Facility Agent), (B) addressed to the Facility Agent and the other Finance Parties and (C) covering customary matters for incremental loan facilities relating to this AmendmentSecond Amendment and the other Loan Documents delivered in connection with this Second Amendment as the Facility Agent shall reasonably request;
(bf) at least one Business Day (solely for purposes of this Section 4, to be defined as any day other than a Saturday, a Sunday or a day on which the Lenders Federal Reserve Bank of New York is closed) prior to the Second Amendment Effective Date, each Security Party shall have received at least five Business Days in advance of provided to the Effective Date (x) all Facility Agent the documentation and other information that is required by bank regulatory authorities under Antior in respect of applicable “know-Money Laundering Lawsyour-customer” requirements, including, without limitation, including the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New BorrowerAct;
(cg) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereofSecond Amendment Effective Date, the Borrower shall have paid to the Facility Agent for the account of each Incremental Lender with Incremental Commitments a fee equal to 1.25% of the aggregate amount of such Incremental Lender’s Commitments in effect on the Second Amendment Effective Date;
(dh) no Default (other than the Specified Default) Borrower shall have occurred paid all other costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and in connection with this Second Amendment;
(i) a copy of the memorandum of agreement (together with all amendments and addenda thereto) for the Additional Vessel duly executed by the Additional Guarantor who will be continuingthe owner thereof, and since the effective date relevant seller, together with evidence of any address or similar commission arrangements, all of which shall be of terms acceptable to the Facility Agent (certified by an officer of the Borrower or such Additional Guarantor to be a true, correct and complete copy thereof);
(j) two valuations dated respectively September 30, 2018 and October 8, 2018, addressed to the Borrower or the Facility Agent (at the expense of the Borrower) by an Approved Broker indicating the Fair Market Value of the Additional Vessel;
(k) a duly executed original of (i) an amendment to the Membership Interest Pledge and (ii) an Account Pledge with respect to the Additional Guarantor who will be the owner of the Additional Vessel, and of any documents required to be delivered thereunder;
(l) upon the request of any Incremental Lender made through the Facility Agent, a promissory note executed and delivered to the order of such Incremental Lender in the form of Exhibit L attached to the Credit Agreement, or any other form approved by the Facility Agent;
(m) the conditions precedent set forth in Section 4.03 and Section 4.04 of the Credit Agreement in relation to the Additional Vessel and the Additional Guarantor who will be the owner thereof shall have been satisfied (or waived in writing by the Facility Agent with the consent of the Incremental Lenders);
(n) the Facility Agent shall have received in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this Second Amendment, and evidence that such amendment has been duly recorded in accordance with the Laws of the Approved Flag;
(o) evidence that the Additional Guarantor who will be the owner of the Additional Vessel has duly opened an Operating Account and has delivered to the Facility Agent all resolutions, signature cards and other documents or evidence required in connection with the opening, maintenance and operation of such accounts with the Account Bank;
(p) evidence that, if the tests set out in Article VII or Section 5.04 of the Credit Agreement were applied immediately following the making of the relevant Borrowing, the Borrower would not be obliged to provide additional security or repay part of the Borrowings as therein provided (determined on the basis of the most recent financial statements valuation for each Vessel delivered pursuant to Section 7.1(a) 5.03 of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect); and
(eq) the (i) all representations and warranties set forth in Section 7 hereof 3 of this Second Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date hereof(in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date) and (ii) no Default shall have occurred and be continuing or would occur after giving effect to the incurrence of the Loans pursuant to this Second Amendment and the application of the proceeds therefrom.
Appears in 1 contract