Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”): (a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent). (b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date. (c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date. (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date, (ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official), (iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date, (iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date, (v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and (vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party. (d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request. (e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder). (f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date. (g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof. (h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower. (i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 2 contracts
Samples: First Lien Credit Agreement, First Amendment to First Lien Credit Agreement (Exela Technologies, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Incremental Term B Lenders to make 2018 Repriced Incremental Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Incremental Term B Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Incremental Term Lenders and 2018 Increase B Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Incremental Term B Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each existing Lender with a Term B Loan outstanding under the Existing Term Lender Credit Agreement immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their such existing Term B Loans outstanding under the Existing Term Loans Credit Agreement to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Incremental Term B Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxx Xxxxxx L.L.P.LLP, in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Incremental Term B Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received a solvency certificate substantially in the form of Exhibit C to the Existing Credit Agreement (as modified so that such certificate shall be made on the Effective Date after giving effect to the Incremental Term B Loans incurred on the Effective Date).
(f) The Administrative Agent shall have received all fees payable thereto or to any Incremental Arranger, on or prior to the Effective Date and, to the extent invoiced at least three (3) Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Incremental Term B Loans made hereunder).
(fg) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) Business Days prior to the Effective Date.
(gh) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, Date to the effect set forth in Sections 3(b) and 3(dSection 4(b) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent Acquisition shall have received a Borrowing Request as required by Section 2.03 (be consummated simultaneously or a Borrowing Request shall have been deemed given in accordance substantially concurrently with the last paragraph Borrowing of Section 2.03)the Incremental Term B Loans on the Effective Date.
Appears in 2 contracts
Samples: Incremental Assumption Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Closing Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received received, on behalf of itself and the Lenders, a written opinion of (i) from each Cashless Settlement Repricing LenderWhite & Case LLP, each Post-Closing Repricing Lender, each 2018 Increase Lender counsel for Intermediate Holdings and the other Lenders party hereto (that together constitute at least the Required Lenders) Borrower, in form and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence substance reasonably satisfactory to the Administrative Agent Joint Lead Arrangers and provided to the Lenders, (which may include delivery ii) White & Case LLP, counsel for Intermediate Holdings and the Borrower, addressing bankruptcy non-consolidation issues in form and substance reasonably satisfactory to the Joint Lead Arrangers and provided to the Lenders, (iii) Xxxxxxxx, Xxxxxx & Finger, a Professional Association, special Delaware counsel for Intermediate Holdings and the Borrower, addressing Independent Manager provisions of a signed signature page the limited liability company agreements of this Agreement by facsimile or other means of electronic transmission Intermediate Holdings and the Borrower and (e.g.iv) each local counsel listed on Schedule 4(a), “pdf”)substantially to the effect set forth in Exhibit G-3, in each case (A) that such party has signed a counterpart of this Agreement dated the Closing Date, (or a Repricing Consent).
(bB) The Borrower shall have paid addressed to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior Collateral Trustee and the Lenders and (C) covering such other matters relating to the Effective DateLoan Documents and the Transactions as the Administrative Agent shall reasonably request, simultaneously with and Intermediate Holdings and the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective DateBorrower hereby request such counsel to deliver such opinions.
(cb) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such each Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization or (y) with respect to any Loan Party other than the Borrower or Holdingsorganization, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such each Loan Party as of a recent date date, from such Secretary of State State; (ii) a certificate of the Secretary or other similar official),
Assistant Secretary of each Loan Party dated the Closing Date and certifying (iiiA) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or below, (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors (or equivalent governing body) directors of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate or articles of incorporation of such Loan Party have not been amended since the date of the last amendment thereto shown on the Effective Date,
certificate of good standing furnished pursuant to clause (vi) certifying above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
; (viiii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent may reasonably request.
(c) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of such Loan Party orthe Borrower, to confirming compliance with the knowledge conditions precedent set forth in paragraphs (y) and (z) of such person, threatening the existence of such Loan PartyArticle IV.
(d) The Administrative Agent shall have receivedreceived all Administrative Agent Fees and all other costs, on behalf of itself fees, expenses (including legal fees and expenses, title premiums, survey charges and recording taxes and fees) and other compensation contemplated by the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed Transactions payable to the Administrative Agent and or the Joint Lead Arrangers, the Co-Manager or the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating extent due and to this Agreement as the Administrative Agent shall extent a reasonably requestdetailed invoice has been delivered to the Borrower at least three business days prior to the Closing Date.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Security Documents shall have been paid duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on or prior to the Effective Date (which amounts may be offset against the proceeds Closing Date. The Collateral Trustee on behalf of the Loans made hereunder)Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(f) The Administrative Agent Collateral Trustee shall have received on or prior to three (3) Business Days prior a Perfection Certificate with respect to the Effective Loan Parties dated the Closing Date all documentation and other information duly executed by a Responsible Officer of Intermediate Holdings and the Borrower, and shall have received the results of (i) a search of the type set forth Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in Section 3.23(athe states (or other jurisdictions) of formation of such Persons, in which the Existing Credit Agreementchief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate; and (ii) a search of the title records of the United States Patent and Trademark Office and the United States Copyright Office or agencies with respect to IP Rights indicated as registered or issued therefrom on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the extent Collateral Trustee that the Liens indicated in any such information has financing statement (or similar document) would be permitted under Section 6.02 or have been requested not less than five (5) Business Days prior to the Effective Dateor will be contemporaneously released or terminated.
(g) The Borrower (i) Each of the Mortgages relating to each Mortgaged Property set forth on Schedule 1.01(c) shall have been duly executed by the applicable Loan Party thereto and delivered to the Administrative Agent a certificate from a Responsible Officer Collateral Trustee and shall be in full force and effect, (ii) each of the Borrower dated as such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02, (iii) each of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) such Mortgages shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).have
Appears in 1 contract
Samples: Credit Agreement (Dynegy Inc.)
Conditions of Lending. The obligations of the December 2018 Repricing Incremental Term B-1 Lenders to make December 2018 Repriced Incremental Term B-1 Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the December 2018 Effective Date, Date are subject (at the time of or substantially concurrently with the making of such the December 2018 Incremental Term B-1 Loans) to the satisfaction (or waiver in accordance with Section 9.09 of by the Existing Credit Agreement or by a majority of the December 2018 Repricing Incremental Term Lenders and 2018 Increase B-1 Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “December 2018 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and Borrower, the Subsidiary Loan Parties, Parties and the December 2018 Incremental Term B-1 Lenders either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the December 2018 Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower Borrower, Holdings, MSA Systems Integration, Inc. (“MSA”), AA/ACME LOCKSMITHS, INC. (“AA/ACME”) or HoldingsADT LLC, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,March 16, 2018.
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the December 2018 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower Borrower, Holdings, MSA or HoldingsAA/ACME, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing DateMarch 16, 2018,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the executive committee of the board of managers or Board of Directors (or equivalent governing body) ), as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings Borrowing hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the December 2018 Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(dc) The Administrative Agent shall have received, on behalf of itself and the December 2018 Incremental Term B-1 Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the December 2018 Effective Date, (B) addressed to the Administrative Agent and the December 2018 Incremental Term B-1 Lenders on the December 2018 Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ed) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any December 2018 Incremental Arranger, Incremental Term B-1 Lender, the Co-Manager and to those certain financial institutions party to the October 2018 Fee Letter and the November 2018 Additional Fee Letter, on or prior to the December 2018 Effective Date and, to the extent invoiced at least three Business Days prior to the December 2018 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder, thereunder or under any Loan Document or under that certain related commitment letter on or prior to the December 2018 Effective Date (which amounts may be offset against the proceeds of the December 2018 Incremental Term B-1 Loans made hereunder).
(fe) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the December 2018 Effective Date (a) all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing Credit AgreementAgreement and (b) if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a certification regarding beneficial ownership, in each case, to the extent such information has been requested by the Administrative Agent not less than five (5) ten Business Days prior to the December 2018 Effective Date.
(f) (A) The representations and warranties made by or with respect to the Target and its subsidiaries in the Acquisition Agreement that are material to the interests of the December 2018 Incremental Term B-1 Lenders (in their capacities as such) (but only to the extent that the Purchaser has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations) shall be true and correct in all material respects and (B) the representations and warranties of the Borrower and, to the extent applicable, Holdings and the Subsidiary Loan Parties, in Sections 3.01(a) and (d), 3.02(a) and (b)(i)(B), 3.03, 3.10, 3.11, 3.17 (limited to creation, validity and perfection and except as provided in the last paragraph of this Section 5), 3.19 (provided that each reference to the “Closing Date” therein shall be deemed to instead refer to the December 2018 Effective Date and each reference to the “ADT Transactions” therein shall be deemed to instead refer to the December 2018 Transactions and the incurrence of the December 2018 Incremental Term B-1 Loans), 3.25(a), 3.25(b) (limited to the last sentence of such clause) and 3.26 (limited to the last sentence of such clause) of the Existing Credit Agreement shall be true and correct in all material respects with the same effect as though made on and as of the December 2018 Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).
(g) Since the date of the Acquisition Agreement, there shall have been no “Material Adverse Effect” (as defined in the Acquisition Agreement).
(h) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the December 2018 Effective Date, to the effect set forth in Sections 3(b5(f) and 3(d5(g) hereof.
(hi) At least three (3) Business Days prior The Borrower shall have delivered to the Administrative Agent a solvency certificate substantially in the form of the solvency certificate delivered on February 13, 2017 (as modified so that such certification shall be made on the December 2018 Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (Date after giving effect to the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by consummation of the Beneficial Ownership Regulation in relation to such BorrowerDecember 2018 Transactions and the incurrence of the December 2018 Incremental Term B-1 Loans).
(ij) The Acquisition shall be consummated simultaneously or substantially concurrently with the Borrowing of the December 2018 Incremental Term B-1 Loans on the terms described in the Acquisition Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by the Purchaser that is materially adverse to the interests of the December 2018 Incremental Term B-1 Lenders (in their capacities as such) unless it is approved by the December 2018 Incremental Arrangers (which approval shall not be unreasonably withheld, delayed or conditioned).
(k) The Administrative Agent shall have received a Borrowing Request as the financial statements required by pursuant to Section 2.03 5.04(a) and (or a Borrowing Request b) of the Existing Credit Agreement, in each case, within the time periods required thereunder.
(l) The Administrative Agent shall have been received, for the account of the December 2018 Term B-1 Lenders, upfront fees in an amount equal to 0.50% of the December 2018 Term B-1 Loan Commitments.
(m) On the December 2018 Effective Date, after giving effect to the December 2018 Transactions and the other transactions contemplated by the Acquisition Agreement, none of Target or any of its subsidiaries shall have any third-party debt for borrowed money other than (i) guarantees of the Obligations, the Second Priority Senior Secured Notes and the Existing ADT Roll-Over Notes and (ii) any other Indebtedness permitted to be incurred or outstanding on the December 2018 Effective Date pursuant to the Existing Credit Agreement. For purposes of determining compliance with the conditions specified in this Section 5, each December 2018 Incremental Term B-1 Lender shall be deemed given to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the December 2018 Incremental Term B-1 Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such December 2018 Incremental Term B-1 Lender prior to the December 2018 Effective Date specifying its objection thereto and such December 2018 Incremental Term B-1 Lender shall not have made available such December 2018 Incremental Term B-1 Lender’s ratable portion of the Borrowing of the December 2018 Incremental Term B-1 Loans. No representations or warranties under the Loan Documents will be deemed made on the December 2018 Effective Date other than those referred to in Section 4 or paragraph (f) above. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, it is understood and agreed that no guarantees shall be required to be provided by the Target and its subsidiaries on the December 2018 Effective Date and no security interest shall be required to be granted or perfected in any of the equity interests issued by or assets of the Target and its subsidiaries on the December 2018 Effective Date or as a condition precedent to the availability or funding of the December 2018 Incremental Term B-1 Loans but, to the extent otherwise required under the Amended and Restated Credit Agreement, shall be provided after the December 2018 Effective Date in accordance with Section 5.10 of the last paragraph of Section 2.03)Amended and Restated Credit Agreement.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions of Lending. The obligations effectiveness of this Agreement, and the 2018 Repricing Term Lenders obligation of each Lender to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional fund its Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgent’s receipt of the following, each Post-Closing Repricing Lenderof which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, and in the case of documents delivered by the Borrower, each 2018 Increase Lender and properly executed by a Responsible Officer of the other Lenders party hereto Borrower, each dated the Closing Date (that together constitute at least or, in the Required Lenderscase of certificates of governmental officials, a recent date before the Closing Date) and (ii) from each of Holdings, the Borrower in form and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably substance satisfactory to the Administrative Agent and each of the Lenders:
(which may include delivery of a signed signature page i) executed counterparts of this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a confirmation from each Guarantor that the Guaranty continues to guarantee, and from the Borrower and each Guarantor that the security interests granted pursuant to the Collateral Documents continue to secure, the Obligations after giving effect to the amendment and restatement of the Existing Credit Agreement by facsimile on the Closing Date;
(iv) such certificates of resolutions or other means action, incumbency certificates and/or other certificates of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer Responsible Officers of each Loan Party dated as the Effective Date.Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is party;
(iv) either (xA) attaching a copy copies of the certificate of incorporation (or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent document) and governing documents, including all amendments thereto, of such thereto for each Loan Party, certified certified, if applicable, as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents state of such Loan Party since the Closing Date,
Party’s organization, (iiB) attaching copies of each Loan Party’s bylaws and/or other constitutional documents together with all amendments thereto and (C) a certificate as to the good standing certificate (to the extent such concept or a similar concept exists under the laws of such jurisdictionequivalent document) of for each Loan party from such Loan Party as Party’s jurisdiction of organization dated a recent date from such Secretary of State (on or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, andAgreement;
(vi) certifying as an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, counsel to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party orParties, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and each Lender, covering the Lenders on the Effective Date matters set forth in Exhibit E attached hereto, and (C) in form and substance reasonably satisfactory such local counsel opinions relating to the Administrative Agent covering such matters relating to this Agreement Loan Parties as the Administrative Agent shall may reasonably request.;
(evii) All fees five-year financial projections for the Borrower and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds its Subsidiaries, including balance sheet and statements of the Loans made hereunder).income and cash flow;
(fviii) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from of a Responsible Officer of the Borrower dated as to the matters set forth below in this clause (viii) (provided that the certificate delivered with respect to the matters set forth in clauses (A), (B) and (C) below shall be executed by the chief financial officer of the Borrower):
(A) certifying as to the Solvency of the Borrower and its Subsidiaries taken as a whole before and after giving effect to the incurrence of Indebtedness hereunder on the Closing Date;
(B) certifying that the representations and warranties of the Borrower and the other Loan Parties contained in Article V (other than the representations and warranties set forth in Section 5.05(b) and 5.05(c)) or in any other Loan Document are true and correct in all material respects as of the Effective Closing Date, both before and after giving effect to the incurrence of Indebtedness hereunder on the Closing Date, except to the extent that any such representation or warranty is expressly stated to be made as of an earlier date;
(C) certifying that on the Closing Date, both before and after giving effect to the incurrence of Indebtedness hereunder on the Closing Date, no Default or Event of Default shall have occurred and be continuing; and
(D) certifying as to the accuracy of the matter set forth in Sections 3(bsubsection (c) of this Section 4.01;
(b) the Administrative Agent’s receipt of the following:
(i) certificates of insurance evidencing that insurance complying with the requirements of this Agreement is in effect;
(ii) a Loan Notice in accordance with the requirements hereof; and
(iii) the Term Facility shall have received a facility rating as determined by S&P and Mxxxx’x as of the Closing Date.
(c) no statute, rule or regulation shall have been enacted by any Governmental Authority which prohibits or makes unlawful the incurrence of Indebtedness contemplated by this Agreement;
(d) there shall be no actions, suits or proceedings pending or threatened against the Borrower or any of its Subsidiaries, at law or in equity, or before or by any Governmental Authority, other than those that have not had and would not reasonably be expected to have a Material Adverse Effect, and there shall be no outstanding judgments, decrees, injunctions, awards or orders of any Governmental Authority against the Borrower or any of its Subsidiaries, other than those that have not had and would not reasonably be expected to have a Material Adverse Effect;
(e) the representations and warranties of the Borrower and each other Loan Party set forth in Article V (other than the representations and warranties set forth in Section 5.05(b) and 3(d5.05(c)) hereof.shall be true and correct in all material respects on and as of the Closing Date, except to the extent that any such representation or warranty is expressly stated to be made as of an earlier date, before and after giving effect to the making of the Term Loans on the Closing Date;
(f) no Default or Event of Default shall exist or would result from the making of the Term Loans on the Closing Date, or from the application of the proceeds thereof;
(g) the Administrative Agent shall be reasonably satisfied that all Indebtedness under the Existing Term Loan Credit Agreement shall be repaid on the Closing Date;
(h) At unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least three (3) one Business Days Day prior to the Effective Closing Date, any 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 that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (and the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.Administrative Agent); and
(i) The any fees required to be paid on or before the Closing Date shall have been paid. 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 a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with notice from such Lender prior to the last paragraph of Section 2.03)proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Western Refining, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing November 2017 Incremental Term B Lenders to make 2018 Repriced November 2017 Incremental Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the November 2017 Effective Date, Date are subject (at the time of or substantially concurrently with the making of such November 2017 Incremental Term B Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing November 2017 Incremental Term Lenders and 2018 Increase B Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “November 2017 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase November 2017 Incremental Term B Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the November 2017 Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since (i) in the Closing case of each such Loan Party other than the TriCore Entities (as defined below), the June 2017 Effective Date or (ii) in the case of TriCore Solutions, LLC, Group Basis, LLC, TriCore Solutions, Inc. and Database Specialists, Inc. (collectively, the “TriCore Entities”), July 18, 2017 (the “TriCore Joinder Date”),
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the November 2017 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since (i) in the Closing case of each such Loan Party other than the TriCore Entities, the June 2017 Effective Date or (ii) in the case of the TriCore Entities, the TriCore Joinder Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the November 2017 Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(dc) The Administrative Agent shall have received, on behalf of itself and the November 2017 Incremental Term B Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the November 2017 Effective Date, (B) addressed to the Administrative Agent and the November 2017 Incremental Term B Lenders on the November 2017 Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ed) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any November 2017 Incremental Arranger and the Co-Manager, on or prior to the November 2017 Effective Date and, to the extent invoiced at least three Business Days prior to the November 2017 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the November 2017 Effective Date (which amounts may be offset against the proceeds of the November 2017 Incremental Term B Loans made hereunder).
(fe) The Administrative Agent shall have received on or prior to the date that is three (3) Business Days prior to the November 2017 Effective Date all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) 10 Business Days prior to the November 2017 Effective Date.
(f) The representations and warranties made by or with respect to the Target and its subsidiaries in the Merger Agreement that are material to the interests of the November 2017 Incremental Term B Lenders (in their capacity as such) (but only to the extent that the Borrower or the Purchaser has the right to terminate its obligations under the Merger Agreement as a result of a breach of such representation in the Merger Agreement) shall be true and correct in all material respects, and the representations and warranties of the Borrower and, to the extent applicable, the Guarantors, in Sections 3.01(a) and (d), 3.02(a) and (b)(i)(B), 3.03, 3.10, 3.11, 3.17 (limited to creation, validity and perfection), 3.19 (provided that each reference to the “June 2017 Effective Date” and the “June 2017 Transactions” therein shall be deemed to instead refer to the “November 2017 Effective Date” and “November 2017 Transactions”, respectively), 3.25 and 3.26 of the Existing Credit Agreement shall be true and correct in all material respects with the same effect as though made on and as of the November 2017 Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).
(g) The Acquisition shall be consummated simultaneously or substantially concurrently with the Borrowing of the November 2017 Incremental Term B Loans on the November 2017 Effective Date on the terms described in the Merger Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by the Purchaser that is materially adverse to the interests of the November 2017 Incremental Term B Lenders (in their capacity as such) unless it is approved by the November 2017 Incremental Arrangers (which approval shall not be unreasonably withheld, delayed or conditioned).
(h) Since the date of the Merger Agreement, there shall have been no “Material Adverse Effect” (as defined in the Merger Agreement).
(i) The Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit C to the Existing Credit Agreement (as modified so that such certification shall be made on the November 2017 Effective Date after giving effect to the consummation of the November 2017 Transactions).
(j) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the November 2017 Effective Date, to the effect set forth in Sections 3(b5(f) and 3(d5(h) hereof.
(hk) At least three On the November 2017 Effective Date, after giving effect to the November 2017 Transactions and the other transactions contemplated by the Merger Agreement, none of the Target or any of its subsidiaries shall have any third-party Indebtedness of the type described in clause (3a) Business Days of the definition thereof other than (i) guarantees of the Obligations and the Senior Unsecured Notes and (ii) any other Indebtedness permitted to be incurred or outstanding on or prior to the November 2017 Effective DateDate pursuant to the Existing Credit Agreement. For purposes of determining compliance with the conditions specified in this Section 5, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (each November 2017 Incremental Term B Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by November 2017 Incremental Term B Lenders unless an officer of the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent responsible for the transactions contemplated by this Agreement shall have received a notice from such November 2017 Incremental Term B Lender prior to the November 2017 Effective Date specifying its objection thereto and such November 2017 Incremental Term B Lender shall not have funded such November 2017 Incremental Term B Lender’s ratable portion of the Borrowing Request as required by Section 2.03 of the November 2017 Incremental Term B Loans. No representations or warranties under the Loan Documents will be deemed made on the November 2017 Effective Date other than those referred to in paragraph (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03)f) above.
Appears in 1 contract
Samples: Incremental Assumption Agreement (Rackspace Technology, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (obligation of Bank to make the initial loan hereunder or its counsel) issuing or causing to be issued any Letter of Credit hereunder shall be subject to the condition precedent that Bank shall have received (i) from each Cashless Settlement Repricing Lenderall of the following, each Post-Closing Repricing Lender, each 2018 Increase Lender in form and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence substance reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.Bank:
(i) either (x) attaching a copy This Agreement, properly executed on behalf of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,Borrower;
(ii) attaching a certificate as The Master Note drawn to the good standing (to order of Bank in the extent such concept or a similar concept exists under face amount of the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),Credit Limit;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior The Term Note drawn to the date order of Bank in the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) face amount of such Loan Party since the Closing Date,Equipment Loan;
(iv) certifying that attached thereto is a A true and complete correct copy of resolutions duly adopted any and all leases pursuant to which Borrower is leasing any real property, together with a landlord's consent and waiver with respect to such real property;
(v) Current searches of appropriate filing offices showing that (A) no state or federal tax liens have been filed and remain in effect against Borrower, (B) no financing statements have been filed and remain in effect against Borrower, except those financing statements relating to liens set forth on Schedule "B", the liens of the secured lender to be paid with the proceeds of the initial loan and those financing statements filed by the Board Bank, and (C) the Bank has duly filed all financing statements necessary to perfect the security interests granted hereunder, to the extent the security interests are capable of Directors being perfected by filing;
(vi) A certificate of the Clerk/Secretary or equivalent governing bodyan Assistant Clerk/Secretary of the Borrower, certifying as to (A) the resolutions of such Loan Party (or its managing general partner or managing member) the directors and, if required, the shareholders of Borrower, authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andand related documents, in (B) the case Certificate of Incorporation and By-Laws of Borrower, and (C) the signatures of the Borrower, the borrowings hereunder, officers or agents of Borrower authorized to execute and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with deliver this Agreement on behalf of such Loan Partyand other instruments, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party oragreements and certificates, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have receivedincluding loan requests, on behalf of itself and Borrower;
(vii) A current certificate issued by the LendersSecretary of State of the state of the Borrower's incorporation, certifying that Borrower is in compliance with all corporate organizational requirements of such state;
(viii) Evidence that Borrower is duly licensed or qualified to transact business in all jurisdictions where the written opinions character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary;
(iix) XxxxAn opinion of counsel to the Borrower, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to Bank;
(x) Certificates of the Administrative Agent and insurance required hereunder, with all hazard insurance containing a lender's loss payable endorsement in favor of Bank;
(xi) A subordination agreement, properly executed by each of the Lenders on the Effective Date and (C) subordinating creditors, if any, in form and substance reasonably satisfactory to Bank;
(xii) Payment of the Administrative Agent covering fees due through the date of the initial loan and expenses incurred by Bank through such matters relating date required to be paid by Borrower pursuant to this Agreement Agreement;
(xiii) A Borrowing Base Certificate which indicates that the Borrower has the necessary loan availability to pay all existing secured lenders;
(xiv) Such other documents, instruments and agreements as the Administrative Agent shall Bank may reasonably request.
(eb) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The obligation of Bank to make each loan shall have been paid on or prior be subject to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received further conditions precedent on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrowerdate.
(i) the representations and warranties contained in Sections 3 and 4 hereof are correct on and as of the date of such loan or the issuance of a Letter of Credit, as the case may be, as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date, and;
(ii) no event has occurred and is continuing, or would result from such loan or issuance of such Letter of Credit, as the case may be, which constitutes an Event of Default or which, with notice or the passage of time or both, would constitute an Event of Default. 12 CAPITAL ADEQUACY If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority affects or would affect the amount of capital required or expected to be maintained by the Bank, or person controlling the Bank, and the Bank determines (in its sole and absolute discretion) that the rate of return on its or such controlling person's capital as a consequence of its commitments or the loans made by the Bank is reduced to a level below that which the Bank or such controlling person could have achieved but for the occurrence of any such circumstance, then, in any such case, the Bank shall notify the Borrower thereof within a reasonable time after the occurrence thereof and upon such notice from time to time by the Bank to the Borrower, the Borrower shall promptly pay directly to the Bank additional amounts sufficient to compensate the Bank or such controlling person for such reduction in rate of return. A statement of the Bank as to any such additional amount or amounts (including calculations thereof in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on the Borrower. In determining such amount, the Bank may use any method of averaging and attribution that it (in its sole and absolute discretion) shall deem applicable.
(a) Borrower will promptly, upon receipt of all checks, drafts, cash and other remittances in payment of any Inventory sold or in payment or on account of Borrower's accounts, contracts, contract rights, notes, bills, drafts, acceptances, general intangibles, chooses in action and all other forms of obligations, deliver the same to Bank accompanied by a remittance report in form specified by Bank. Said proceeds shall be delivered to Bank in the same form received except for the endorsement of Borrower where necessary to permit collection of items, which endorsement Borrower agrees to make Bank will credit (conditional upon final collection) all such payments against the principal or interest of any loans secured hereby. The Administrative Agent order and method of such application shall be in the sole discretion of Bank and any portion of such funds which Bank elects not to so apply shall be paid over from time to time by Bank to Borrower Bank will at all times have received the right to require Borrower (i) to enter into a Borrowing Request lockbox arrangement with Bank for the collection of such remittances and payments, or (ii) to maintain its deposit accounts at Bank or, in the alternative, at another financial institution which has agreed to accept drafts drawn on it by Bank under a written depository transfer agreement with Bank and to block Borrower's account and waive its rights as required by Section 2.03 (or a Borrowing Request against such account. Notwithstanding anything contained to the contrary herein, said proceeds shall not be applied to the principal of any LIBOR Rate Loan(s), until all Prime Rate Loans have been deemed given paid in accordance full. As used in this section, "business day(s)" shall mean any day which is neither a Saturday, Sunday nor holiday on which commercial banks are authorized or required to be closed in Boston, Massachusetts.
(b) Borrower or any guarantor hereby grant to Bank a lien, security interest and right of setoff as security for all liabilities and Obligations to Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Bank or any entity in the control of Bank of America Corporation, or in transit to any of them. At any time during an Event of Default, without demand or notice, Bank may set off the same or any part thereof and apply the same to any liability or Obligation of Borrower or any guarantor even though unmatured and regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(c) Bank shall be Borrower's main bank of deposit. Borrower shall maintain aggregate collected funds on deposit with the last paragraph Bank of Section 2.03at least Two Million ($2,000,000.00).
Appears in 1 contract
Conditions of Lending. The obligations effectiveness of this Agreement, and the 2018 Repricing Term Lenders obligation of each Lender to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional fund its Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgent’s receipt of the following, each Post-Closing Repricing Lenderof which shall be originals or telecopies or pdf or similar electronic copies (followed promptly by originals) unless otherwise specified, and in the case of documents delivered by the Borrower, each 2018 Increase Lender and properly executed by a Responsible Officer of the other Lenders party hereto Borrower, each dated the Closing Date (that together constitute at least or, in the Required Lenderscase of certificates of governmental officials, a recent date before the Closing Date) and (ii) from each of Holdings, the Borrower in form and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least one Business Day prior to the Closing Date
(iii) counterparts of the Guaranty executed by each of the Guarantors;
(iv) a Security Agreement duly executed by each Loan Party owning any Collateral, together with:
(A) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(B) such Lien searches as the Administrative Agent shall have requested and completed requests for information, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party that owns any Collateral as debtor, together with copies of such financing statements, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no Liens in favor of any Persons (other than the Liens securing the Obligations and the Liens permitted by Section 7.01), provided, that, with respect to any Collateral the security interest in which may include delivery not be perfected by filing a UCC financing statement, if perfection of the Administrative Agent’s security interest in such Collateral may not be accomplished on or before the Closing Date after the Borrower’s and its Restricted Subsidiaries’ use of commercially reasonable efforts to do so, then the failure to perfect such security interest shall not constitute a failure to satisfy any of the conditions set forth in Section 4.01(a)(iv);
(v) certified copies of the resolutions or authorizations of the Board of Directors or members, as applicable, of each Loan Party approving each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate or limited liability company action, as applicable, of each Loan Party, if any, with respect to each Loan Document to which it is or is to be a party;
(vi) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is party;
(vii) (A) a copy of a signed signature page certificate of this Agreement by facsimile or other means the Secretary of electronic transmission State of the jurisdiction of formation of each Loan Party dated reasonably near the Closing Date certifying (e.g., “pdf”)1) as to a true and correct copy of the Organization Documents of such Loan Party and each amendment thereto on file in such Secretary of State’s office along with copies of such Organizational Documents and relevant amendments thereto and (2) that such party has signed amendments are the only amendments to such Loan Party’s Organizational Documents on file in such Secretary of State’s office, and (B) a counterpart good standing certificate (or equivalent document) for each Loan Party from such Loan Party’s jurisdiction of organization dated a recent date on or prior to the date of this Agreement;
(viii) an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, covering the matters set forth in Exhibit E attached hereto, and such local counsel opinions relating to the Loan Parties as the Administrative Agent may reasonably request;
(ix) a certificate of a Responsible Officer of the Borrower as to the matters set forth below in this clause (ix) (provided that the certificate delivered with respect to the matters set forth in clauses (A) and (B) below shall be executed by the chief financial officer of the Borrower):
(A) certifying as to the Solvency of the Borrower and its Subsidiaries on a consolidated basis before and after giving effect to the Incurrence of Indebtedness hereunder on the Closing Date; and
(B) certifying that (x) the Specified Purchase Agreement Representations and (y) the Specified Representations are true and correct in all material respects as of the Closing Date, after giving effect to the Incurrence of Indebtedness hereunder on the Closing Date, except to the extent that any such representation or a Repricing Consent)warranty is expressly stated to be made as of an earlier date.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account ’s receipt of each Existing Term Lender immediately prior to the Effective Date, simultaneously a Loan Notice in accordance with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Daterequirements hereof.
(c) The 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 a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since extent invoiced at least one Business Day prior to the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.;
(d) The Administrative Agent shall have received, Any fees required to be paid on behalf of itself and or before the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).paid;
Appears in 1 contract
Samples: Term Loan Credit Agreement (Western Refining, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Datesuch Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the date of the making of such Loans 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.
(c) At the time of and immediately after the making of such Loans, no Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, substantially to the effect set forth in Exhibit F, (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.
(e) The Administrative Agent shall have received (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation incorporation (or other equivalent constituent and governing documentscomparable organizational document), including all amendments thereto, of such each Loan Party, certified as of a recent date by the Secretary of State (or other similar officialcomparable entity) of the jurisdiction state of its organization or (y) with respect to any Loan Party other than the Borrower or Holdingsorganization, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such each Loan Party as of a recent date date, from such Secretary of State State; (ii) a certificate of the Secretary or other similar official),
Assistant Secretary of each Loan Party dated the Closing Date and certifying (iiiA) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documentscomparable organizational document) of such Loan Party as in effect on the Effective Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or below, (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent comparable governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the Effective Date,
certificate of good standing furnished pursuant to clause (vi) certifying above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
; (viiii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and clause (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date above; and (Civ) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement other documents as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Article IV.
(g) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit AgreementClosing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(h) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto (and, in the case of the Intercreditor Agreement, by the other parties thereto) and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document upon completion of the filings or other actions referred to therein.
(i) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such information has persons, in which the chief executive office of each such person is located and in the other jurisdictions in which such persons maintain property, in each case to the extent and as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been requested or will be contemporaneously released or terminated.
(j) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(k) The Borrower shall have received gross cash proceeds of not less than five (5) Business Days prior to $198,000,000 from the Effective Dateborrowings under the First Lien Credit Agreement.
(gl) The Borrower shall have delivered to the Note Trustee an irrevocable notice of redemption of the Senior Notes, and shall have deposited with the Note Trustee an amount in cash sufficient to redeem the same and to satisfy and discharge the Senior Note Indenture in accordance with its terms, and the Administrative Agent a certificate from a Responsible Officer shall have received reasonably satisfactory evidence thereof and of the Borrower dated as release of the Effective Date, to Liens securing the effect set forth in Sections 3(b) and 3(d) hereofSenior Notes.
(hm) At least three All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreements (3other than breakage costs which may be invoiced at a later date, expense reimbursement and contingent indemnity obligations which by the terms of the applicable Existing Credit Agreement expressly survive termination) Business Days prior shall have been paid in full (such payment, in the case of the PX Credit Agreement, to include PIK Preferred Stock having a liquidation preference of not less than $49,792,000), the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Immediately after giving effect to the Effective DateTransactions and the other transactions contemplated hereby, any the Borrower that qualifies as a “legal entity customer” and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (i) Indebtedness outstanding under 31 C.F.R. §1010.230 this Agreement, (ii) Indebtedness outstanding under the “Beneficial Ownership Regulation”First Lien Credit Agreement, (iii) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required the PIK Preferred Stock and (iv) Indebtedness set forth on Schedule 6.01 or otherwise permitted by the Beneficial Ownership Regulation in relation to such BorrowerSection 6.01.
(in) The Administrative Agent shall have received the financial statements referred to in Section 3.05.
(o) The Administrative Agent shall have received a Borrowing Request as certificate from the chief financial officer of the Borrower certifying that the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent.
(p) There shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on the financing for the Transactions.
(q) The Administrative Agent shall have received, at least five days prior to the Closing Date, all documentation and other information required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including the last paragraph of Section 2.03)USA PATRIOT Act.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing 2023 Refinancing Term B-1 Lenders to make 2018 Repriced the 2023 Refinancing Term B-1 Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase 2023 Refinancing Term B-1 Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower Borrowers and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B-1 Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2023 Refinancing Term B-1 Loans, all accrued and unpaid interest on their its Existing Term B-1 Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer Responsible Officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Eleventh Incremental Assumption and Amendment Agreement Effective Date,;
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Eleventh Incremental Assumption and Amendment Agreement Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the executive committee of the board of managers or Board of Directors (or equivalent governing body) ), as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the BorrowerBorrowers, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,;
(v) either (x) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan PartyParty or (y) with respect to any Loan Party other than the Borrowers or Holdings, certifying that there have been no changes to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the Eleventh Incremental Assumption and Amendment Agreement Effective Date; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the 2023 Refinancing Term B-1 Lenders, the a written opinions opinion of (i) Xxxx, WeissXxxxx, RifkindXxxxxxx, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the 2023 Refinancing Term B-1 Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2023 Arranger, the Co-Manager or any 2023 Refinancing Term B-1 Lender on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the 2023 Refinancing Term B-1 Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date (a) all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing Credit AgreementAgreement and (b) if any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a certification regarding beneficial ownership, in each case, to the extent such information has been requested by the Administrative Agent not less than five (5) three Business Days prior to the Effective Date.
(g) The Borrower Borrowers shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the Effective Date, to the effect set forth in Sections 3(b4(b) and 3(d4(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions of Lending. The obligations of the 2018 Repricing 2024 Refinancing Term B-1 Lenders to make 2018 Repriced the 2024 Refinancing Term B-1 Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2024 Refinancing Term B-1 Loan Exchange Lender, each 2024 Refinancing Term B-1 Post-Closing Repricing Lender, each 2018 Increase Option Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) each Additional 2024 Refinancing Term B-1 Lender and (ii) from each of Holdings, the Borrower Borrowers and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or, in the case of the 2024 Refinancing Term B-1 Loan Exchange Lenders or 2024 Refinancing Term B-1 Post-Closing Option Lenders, a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or, in the case of the 2024 Refinancing Term B-1 Loan Exchange Lenders or 2024 Refinancing Term B-1 Post-Closing Option Lenders, a Repricing Consent).
(b) The Borrower Borrowers shall have paid to the Administrative Agent, for the ratable account of each Existing Term B-1 Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2024 Refinancing Term B-1 Loans, all accrued and unpaid interest on their its Existing Term B-1 Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer Responsible Officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Thirteenth Incremental Assumption and Amendment Agreement Effective Date,;
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Thirteenth Incremental Assumption and Amendment Agreement Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the executive committee of the board of managers or Board of Directors (or equivalent governing body) ), as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the BorrowerBorrowers, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,;
(v) either (x) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan PartyParty or (y) with respect to any Loan Party other than the Borrowers or Holdings, certifying that there have been no changes to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the Thirteenth Incremental Assumption and Amendment Agreement Effective Date; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) XxxxPxxx, WeissWxxxx, RifkindRxxxxxx, Xxxxxxx Wxxxxxx & Xxxxxxxx Gxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2024 Arranger, the Co-Manager or any 2024 Refinancing Term B-1 Lender on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the 2024 Refinancing Term B-1 Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date (a) all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing Credit AgreementAgreement and (b) if any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a certification regarding beneficial ownership, in each case, to the extent such information has been requested by the Administrative Agent not less than five (5) three Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the Effective Date, to the effect set forth in Sections 3(b4(b) and 3(d4(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Incremental Term Loan Lenders to make 2018 Repriced Incremental Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Incremental Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loanstherewith) to the satisfaction (or waiver in accordance with Section 9.09 9.02 of the Existing Credit Agreement or by a majority of the 2018 Repricing Incremental Term Lenders and 2018 Increase Loan Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Incremental Effective Date”):
(a) The Administrative Agent (or its counsel) shall have (1) received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Incremental Term Loan Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement Amendment signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Amendment.
(b) The Borrower Administrative Agent shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making received a Borrowing Request as required by Section 2.03 of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective DateCredit Agreement.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party Party, dated the Incremental Effective Date., executed by any Responsible Officer of such Loan Party, including or attaching:
(i) either (x) attaching a copy of each Organizational Document of each Loan Party certified, to the certificate or articles of incorporationextent applicable, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization applicable Governmental Authority or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents Organization Documents of such Loan Party Parties since the Closing 2019 Incremental Effective Date,
(ii) attaching a certificate as to signature and incumbency certificates of the good standing (to the extent such concept or a similar concept exists under the laws Responsible Officers of such jurisdiction) of such each Loan Party as of executing this Amendment and the other Loan Documents which it is a recent date from such Secretary of State (or other similar official)party,
(iii) either (x) certifying that attached thereto is a true and complete copy resolutions of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent and/or similar governing body) bodies of such each Loan Party (or its managing general partner or managing member) approving and authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party it is a party andparty, in the case certified as of the BorrowerIncremental Effective Date by its secretary, the borrowings hereunder, and that such resolutions have not been modified, rescinded an assistant secretary or amended and are a Responsible Officer as being in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Partywithout modification or amendment, and
(viiv) certifying as a good standing certificate (to the absence extent such concept exists) from the applicable Governmental Authority of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such each Loan Party’s jurisdiction of incorporation, organization or formation.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the received a written opinions of opinion (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Incremental Term Loan Lenders on and dated the Incremental Effective Date Date) of (i) Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx LLP, New York and Delaware counsel for the Loan Parties and (Cii) Gunster, Florida counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement Amendment as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any 2020 Incremental Arranger, on or prior to the Incremental Effective Date and, to the extent invoiced at least two Business Days prior to the Incremental Effective Date (except as otherwise reasonably agreed by Holdings), reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of King & Spalding LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any other Loan Document on or prior to the Incremental Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder), in each case to the extent required by the Amended Credit Agreement.
(f) The Administrative Agent or relevant Incremental Term Loan Lender, as applicable, shall have received on or prior to the date that is three (3) Business Days prior to the Incremental Effective Date (i) all documentation and other information of the type set forth in Section 3.23(a4.01(n) of the Existing Credit AgreementAgreement and (ii) if applicable, a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230, in each case, to the extent such information has been reasonably requested by the Administrative Agent or an Incremental Term Loan Lender not less than five (5) 10 Business Days prior to the Incremental Effective Date.
(g) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower substantially in the form of Exhibit F to the Credit Agreement.
(h) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Incremental Effective Date, to the effect set forth in Sections 3(a), 3(b), 3(c) and 3(d) hereof.
(hi) At least three (3) Business Days prior The Borrower shall have delivered to the Administrative Agent a certificate from the Chief Financial Officer of the Borrower dated as of the Incremental Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (to the “Beneficial Ownership Regulation”effect set forth in Section 3(e) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrowerhereof.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment (European Wax Center, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) obligation of Bank to make the initial Loan hereunder shall be subject to the condition precedent that Bank shall have received (i) from each Cashless Settlement Repricing Lenderall of the following, each Post-Closing Repricing Lender, each 2018 Increase Lender in form and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably substance satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.Bank:
(i) either (x) attaching a copy This Agreement, properly executed on behalf of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,Xxxxxxxx.
(ii) attaching a certificate as The Line of Credit Note drawn to the good standing (to the extent such concept or a similar concept exists under the laws order of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),Bank.
(iii) either (x) certifying that attached thereto is a true and complete copy All of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect Documents properly executed on the Effective Date and at all times since a date prior to the date behalf of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,respective parties thereto.
(iv) Current searches of appropriate filing offices showing that (A) no financing statements have been filed and remain in effect against Borrower, except those financing statements filed by Bank, and (B) Bank has duly filed all financing statements necessary to perfect the security interests granted hereunder, to the extent the security interests are capable of being perfected by filing and shall do so within twenty (20) days of the execution of this Agreement.
(v) A certificate from the Secretary or Clerk of Borrower, certifying that attached thereto is a true and complete copy as to (A) the resolutions of resolutions duly adopted by the Board shareholders of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) Borrower, authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andand related documents, in (B) the case Certificate of Incorporation and Bylaws of Borrower, and (C) the specimen signatures of the Borrower, the borrowings hereunder, officers or agents of Borrower authorized to execute and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with deliver this Agreement and other instruments, agreements and certificates, including loan requests, on behalf of such Loan Party, andXxxxxxxx.
(vi) certifying as to A current certificate of good standing issued by the absence Secretary of any pending proceeding for State of the dissolution or liquidation state of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan PartyXxxxxxxx’s organization.
(dvii) The Administrative Agent shall have receivedEvidence that Borrower is duly licensed or qualified to transact business in Maine and in all other jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(viii) An opinion of counsel to Xxxxxxxx and each organizational guarantor, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) Bank, in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably requestBank.
(eix) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds Certificates of the Loans made insurance required hereunder), with all hazard insurance containing a lender’s loss payable endorsement in favor of Bank.
(fx) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information Payment of the type set forth in Section 3.23(a) fees due through the date of the Existing Credit Closing and expenses incurred by Bank through such date required to be paid by Borrower pursuant to this Agreement, to including, without limitation, an origination fee for the extent such information has been requested not less than five (5) Business Days prior to the Effective DateLine of Credit of $20,000.
(gxi) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated Such other documents, instruments and agreements as of the Effective Date, to the effect set forth Bank in Sections 3(b) and 3(d) hereofits sole discretion may require.
(hb) At least three (3) Business Days prior The obligation of Bank to make each advance under the Line of Credit Loan after the date of this Agreement shall be subject to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to further conditions precedent on such Borrower.date:
(i) The Administrative Agent shall have received a Borrowing Request the representations and warranties contained in Sections 4 and 5 hereof are materially correct on and as required by Section 2.03 of the date of such Line of Credit Loan as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date; and
(ii) no event has occurred and is continuing, or a Borrowing Request shall have been deemed given in accordance would result from such Line of Credit Loan which constitutes an Event of Default or which, with notice or the last paragraph passage of Section 2.03)time or both, would constitute an Event of Default.
Appears in 1 contract
Samples: Loan and Security Agreement (Star Equity Holdings, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing 2019 Refinancing Term B-1 Lenders to make 2018 Repriced the 2019 Refinancing Term B-1 Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2019 Refinancing Term B-1 Loan Exchange Lender, each 2019 Refinancing Term B-1 Post-Closing Repricing Option Lender and each Additional 2019 Refinancing Term B-1 Lender, (ii) from each 2018 Increase existing Revolving Facility Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (iiiii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or, in the case of the 2019 Refinancing Term B-1 Lenders or Revolving Facility Lenders, a Repricing 2019 Refinancing Term B-1 Loan Consent or, in the case of Revolving Facility Lenders, a consent to this Agreement substantially in the form of Exhibit A-2 hereto (a “Revolving Facility Lender Consent” and together with the 2019 Refinancing Term B-1 Loan Consent, each a “Consent”), as applicable) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andor, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded 2019 Refinancing Term B-1 Lenders or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Revolving Facility Lenders, the written opinions of (i) Xxxxa 2019 Refinancing Term B-1 Loan Consent or Revolving Facility Lender Consent, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunderapplicable).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective DateBorrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing 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.
(c) At the time of and immediately after such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) either Kirkland & Ellis LLP, counsel for Holdings and the Borrower, in form xxx xxxxtanxx xxasonably satisfactory to the Administrative Agent, and (xii) attaching each local counsel listed on Schedule IV(d), in form and substance reasonably satisfactory to the Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower hereby request such counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation incorporation (or other equivalent constituent and governing documentsformation document), including all amendments thereto, of such each Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization or (y) with respect to any Loan Party other than the Borrower or Holdingsorganization, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionconcept) of such each Loan Party as of a recent date date, from such Secretary of State (or other similar official),
, (iiiii) either a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (xA) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or below, (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or other equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate or articles of incorporation (or other equivalent formation document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the Effective Date,
certificate of good standing (vto the extent applicable) certifying furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
(viiii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and clause (ii) Xxxxxxx Xxxxxx L.L.P.above, in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (Civ) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement other documents as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Article IV.
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(i) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(j) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of Holdings and the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 2.03 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(or a Borrowing Request l) The Borrower shall have received gross cash proceeds of not less than $175,000,000 from the issuance of the Senior Notes, of which $30,000,000 principal amount of such Senior Notes shall have been deemed given resold to CVC Capital Funding, Inc., the purchase price for which shall have been paid in cash using cash proceeds received by CVC Capital Funding, Inc. from the Borrower in connection with the prepayment in full of the Existing Senior Subordinated Notes, which shall have been delivered to the Borrower for cancellation, and the Administrative Agent shall have received reasonably satisfactory evidence of the cancelation of the Existing Senior Subordinated Notes and of all other loan documents in respect thereof. The terms and conditions of the Senior Notes and the provisions of the Senior Note Documents shall be satisfactory to the Lenders. The Administrative Agent shall have received copies of the Senior Note Documents, certified by a Financial Officer as being complete and correct.
(m) The Revolving Loan Credit Agreement shall have been executed and delivered by the parties thereto and shall have become effective in accordance with its terms, and the last paragraph Administrative Agent shall have received reasonably satisfactory evidence thereof.
(n) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement, (b) Indebtedness under the Revolving Loan Credit Agreement (if any), (c) the Senior Notes, (d) the Existing PIK Notes and (e) Indebtedness set forth on Schedule 6.01.
(o) The Lenders shall have received the financial statements and opinion referred to in Section 3.05, none of Section 2.03)which shall be materially inconsistent with the financial statements or forecasts previously provided to the Lenders.
(p) The Administrative Agent shall have received a certificate from the chief financial officer of Holdings certifying that Holdings and its subsidiaries, on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent.
(q) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(r) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(s) All Indebtedness in respect of the Existing PIK Notes shall have been fully subordinated to the Obligations and each obligee in respect of the Existing PIK Notes shall have entered into a subordination agreement in form and substance reasonably acceptable to the Administrative Agent effecting such subordination.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Network Communications, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing 2021 Refinancing Term B-1 Lenders to make 2018 Repriced the 2021 Refinancing Term B-1 Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2021 Refinancing Term B-1 Loan Exchange Lender, each 2021 Refinancing Term B-1 Post-Closing Repricing Lender, each 2018 Increase Option Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) each Additional 2021 Refinancing Term B-1 Lender and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or, in the case of the 2021 Refinancing Term B-1 Loan Exchange Lenders or 2021 Refinancing Term B-1 Post-Closing Option Lenders, a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or, in the case of the 2021 Refinancing Term B-1 Loan Exchange Lenders or 2021 Refinancing Term B-1 Post-Closing Option Lenders, a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B-1 Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2021 Refinancing Term B-1 Loans, all accrued and unpaid interest on their its Existing Term B-1 Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer Responsible Officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower Borrower, Holdings or Holdings, each Loan Party joined to the Existing Credit Agreement as a Subsidiary Loan Party since the Ninth Amendment Effective Date (the “New Loan Parties”) certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Ninth Amendment Effective Date,;
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower Borrower, Holdings or Holdingsthe New Loan Parties, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Ninth Amendment Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the executive committee of the board of managers or Board of Directors (or equivalent governing body) ), as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,;
(v) either (x) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan PartyParty or (y) with respect to any Loan Party other than the Borrower, Holdings or the New Loan Parties, certifying there have been no changes to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the Ninth Amendment Effective Date; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2021 Arranger, the Co-Manager or any 2021 Refinancing Term B-1 Lender on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the 2021 Refinancing Term B-1 Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date (a) all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing Credit AgreementAgreement and (b) if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a certification regarding beneficial ownership, in each case, to the extent such information has been requested by the Administrative Agent not less than five (5) three Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the Effective Date, to the effect set forth in Sections 3(b4(b) and 3(d4(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions of Lending. The obligations obligation of each Lender to fund the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are Closing Date hereunder is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgent’s receipt of the following, each Post-Closing Repricing Lenderof which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) properly executed by a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making Responsible Officer of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each signing Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andthereto, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to and its legal counsel:
(i) executed counterparts of this Agreement as (including all of the Administrative Agent shall reasonably request.Lenders party hereto);
(eii) All fees and expenses payable under the engagement letter or otherwise an Initial Loan Note executed by Borrower in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds favor of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to each Lender that has requested an Initial Loan Note more than three (3) Business Days prior to the Effective Closing Date;
(iii) except where delivery after the Closing Date is contemplated therein, each Security Document set forth on Schedule 4.01(a)(iii) hereto, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied, if applicable, by undated stock powers executed in blank and instruments evidencing the Pledged Debt endorsed in blank, and
(B) where appropriate and customary in each relevant jurisdiction where the Guarantors are organized, evidence that all documentation other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (and as have been notified to Borrower or its counsel no later than three (3) Business Days prior to the Closing Date) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other information action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (and as have been notified to Borrower no later than three (3) Business Days before the Closing Date) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(A) the executed legal opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special U.S. counsel to the Company and certain other Loan Parties, substantially in the form of Exhibit H; and
(B) the executed legal opinion of local counsel to the Lenders or the Loan Parties, as applicable, in the jurisdictions listed on Schedule 4.01(a)(v)(B), in form and substance reasonably satisfactory to the Administrative Agent;
(C) a certificate signed by a Company Financial Officer certifying that since the date of the type set forth in Acquisition Agreement there has been no Material Adverse Change;
(vi) a certificate signed by a Company Financial Officer attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transactions, from;
(vii) except as contemplated by Section 3.23(a6.14(a) of the Existing Senior Secured Credit Facilities, evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee, mortgagee and additional insured under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named;
(viii) a Borrowing Request relating to the Borrowings made on the Closing Date; and
(ix) the Intercreditor Agreement, executed and delivered by a duly authorized officer of the applicable Loan Parties and of the Collateral Agent and other agents party thereto;
(b) prior to or substantially simultaneously with the Loans made on the Closing Date, arrangements reasonably satisfactory to the Joint Lead Arrangers shall have been made to pay all fees and expenses (to the extent invoices for such information has expenses have been requested not less than provided at least five (5) Business Days prior to the Effective Closing Date) required to be paid hereunder by the Company or Borrower from the Borrowings made on the Closing Date;
(c) prior to or substantially simultaneously with the Initial Loans made on the Closing Date, the Acquisition shall have been consummated in accordance with the terms of the Acquisition Agreement except for the filing of the merger certificate which shall occur substantially concurrently, without giving effect to any amendments or waivers thereto (excluding any waiver by Lyondell of the conditions set forth in Section 6.3(a)(i) of the Acquisition Agreement) that are materially adverse to the Lenders made without reasonable consent of the Joint Lead Arrangers (such consent not to be unreasonably withheld or delayed), and in compliance with applicable material Laws and regulatory approvals;
(d) all of the conditions precedent included in Article IV of the Senior Secured Credit Facilities have been satisfied or waived and the Senior Secured Credit Facilities remain in full force and effect;
(e) the Company and its subsidiaries shall have outstanding no Financial Indebtedness or Disqualified Equity Interests other than (A) the Initial Loan, (B) the loans under the Senior Secured Credit Facilities, (C) the Existing Notes, (D) Existing Indebtedness (including letters of credit issued and outstanding on the Closing Date), and (E) the Asset Backed Credit Facility, Receivables Financing and Securitization Transactions and (F) liabilities incurred in the ordinary course of business and (G) liabilities disclosed in the Pro Forma Financial Statements, in each case to the extent permitted by Section 5.08;
(f) the Administrative Agent shall have received all documentation and other information mutually agreed to be required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(g) The representations and warranties of Borrower and each other Loan Party contained in Article 3 or any other Loan Document shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated be true and correct in all material respects on and as of the Effective Closing Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to No Default shall exist or would result from such proposed Borrowing or from the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (application of the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrowerproceeds therefrom.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03)requirements hereof.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (obligation of Bank to make the initial Loan hereunder or its counsel) to issue or cause to be issued any Letter of Credit hereunder shall be subject to the condition precedent that Bank shall have received all of the following, each in form and substance satisfactory to Bank:
(i) from This Agreement, properly executed on behalf of each Cashless Settlement Repricing LenderBorrower, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and with an Agented Borrowing Agreement in form acceptable to Bank.
(ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory The Note drawn to the Administrative Agent (which may include delivery order of a signed signature page Bank in the face amount of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)the Credit Limit.
(biii) The Borrower shall have paid A landlord’s consent and waiver with respect to the Administrative Agent000 Xxxxxxx Xxxx, for the ratable account of each Existing Term Lender immediately prior to the Effective DateXxxxxxxxx, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective DateXxxxxxxxxxxxx.
(civ) The Administrative Agent shall Current searches of appropriate filing offices showing that (A) no state or federal tax liens have received a been filed and remain in effect against Borrower, (B) no financing statements have been filed and remain in effect against Borrower, except those financing statements relating to liens set forth on Schedule “B”, the liens of the secured lender to be paid with the proceeds of the initial Loan (if any) and those financing statements filed by Bank, and (C) Bank has duly filed all financing statements necessary to perfect the security interests granted hereunder, to the extent the security interests are capable of being perfected by filing.
(v) A certificate of the Secretary or an Assistant Secretary or similar officer of each Loan Party dated Borrower, certifying as to (A) the Effective Date.
(i) either (x) attaching a copy resolutions of the certificate or articles directors and, if required, the shareholders of incorporationBorrower, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andand related documents, in (B) the case certificates of incorporation or other charter documents and By-Laws of Borrower, and (C) the signatures of the Borrower, the borrowings hereunder, officers or agents of Borrower authorized to execute and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with deliver this Agreement and other instruments, agreements and certificates, including Loan requests, on behalf of such Loan Party, andBorrower.
(vi) A current certificate issued by the Secretary of State of the state of Borrower’s incorporation, certifying as to the absence of any pending proceeding for the dissolution or liquidation that Borrower is in compliance with all corporate organizational requirements of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Partystate.
(dvii) The Administrative Agent shall Evidence that Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary, except where the failure to be so licensed would not reasonably be expected to have receiveda material adverse effect on such Borrower or its business.
(viii) An opinion of counsel to Borrower, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to Bank.
(ix) Certificates of the Administrative Agent and insurance required hereunder, with all hazard insurance containing a lender’s loss payable endorsement in favor of Bank.
(x) a Pledge Agreement from Borrower with respect to 65.0% of the Lenders on the Effective Date and outstanding common stock or other equity interests of each foreign Subsidiary of Borrower.
(Cxi) A Non-encumbrance agreement with respect to intellectual property owned or licensed exclusively to Borrower, in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably requestBank.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Loan and Security Agreement (Viisage Technology Inc)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Revolving Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (on the date of each Borrowing (each such satisfaction or waiver, the event being called a “Effective DateCredit Event”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)[Reserved].
(b) The Borrower representations and warranties set forth in Article III and in each other Loan Document shall have paid be true and correct in all material respects (except representations and warranties that are qualified by materiality or similar qualifiers are true and correct in all respects) on and as of the date of such Credit Event with the same effect as though made on and as of such date, except to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior extent such representations and warranties expressly relate to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Datean earlier date.
(c) The Administrative Agent At the time of and immediately after such Credit Event, no Default or Event of Default shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Dateoccurred and be continuing.
(d) Immediately after giving effect to such Credit Event and the use of proceeds thereof, (A) with respect to the Credit Event on the Closing Date, the Borrower shall be in pro forma compliance with (i) either the financial covenant set forth in Section 6.09(a) as of October 31, 2018 and (xii) attaching a copy the financial covenant set forth in Section 6.09(b) as of the certificate or articles of incorporationClosing Date, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since Credit Event after the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to shall be in pro forma compliance with the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documentsfinancial covenants set forth in Section 6.09(a) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (iib) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to Aggregate Revolving Credit Exposures shall not exceed the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) Total Commitment. The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Covenant Certificate dated as of the Effective Closing Date which shall (x) demonstrate compliance with clause (A) as of October 31, 2018 and (y) certify compliance with clause (A)(ii) as of the Closing Date.
(e) No Regulatory Notice Event shall have occurred and be continuing or be currently threatened, except in the case of any Regulatory Notice Events for which each of the Administrative Agent and the Bondholder Designee has been notified in accordance with Section 5.05(f) and with respect to any such notified Regulatory Notice Event, neither the Administrative Agent nor the Bondholder Designee has provided notice in writing to the effect set forth in Sections 3(bBorrower prior to the time of any requested Borrowing that such Regulatory Notice Event is material (it being understood that this condition (e) and 3(dshall not be satisfied if either of the Administrative Agent or the Bondholder Designee provides the Borrower with written notice prior to the time of such requested Borrowing that such notified Regulatory Notice Event is material), unless: (i) hereofthe Administrative Agent or the Bondholder Designee, as applicable, has rescinded such written notice or (ii) the Regulatory Notice Event for which the Administrative Agent or the Bondholder Designee, as applicable, has provided such a written notice is no longer continuing.
(f) [Reserved].
(g) [Reserved].
(h) At least three (3) Business Days prior to Since the Effective Dateeffective date of the most recently delivered Compliance Certificate, any the Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (and the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by Loan Parties have complied with the Beneficial Ownership Regulation in relation to such BorrowerLoan Receivable Selection Policy.
(i) The Loan Parties shall have paid or reimbursed the Administrative Agent, the Bondholder Designee and the Lenders and Holders for all costs and expenses required to be paid or reimbursed by them on the Permitted Borrowing Date in accordance with Section 9.04 hereof.
(j) [Reserved].
(k) [Reserved].
(l) [Reserved].
(m) The Administrative Agent shall have received a Borrowing Request as required customary certificate dated the Closing Date, signed by Section 2.03 a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Article IV.
(or a Borrowing Request n) The Transactions shall have been consummated and the Administrative Agent shall have received executed copies of all agreements, documents and instruments related thereto. Each Credit Event shall be deemed given to constitute a representation and warranty by the Borrower on the date of such Credit Event as to the matters specified in accordance with the last paragraph paragraphs (b), (c), (d), (e) and (h) of Section 2.03)this Article IV.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing 2019 Refinancing Term B Lenders to make 2018 Repriced 2019 Refinancing Term B Loans and of the 2018 Increase 2019 Refinancing Revolving Facility Lenders to make Additional Term Loans, in each case provide 2019 Refinancing Revolving Facility Commitments on the 2019 Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase 2019 Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “2019 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2019 Lender, (ii) each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) Issuing Bank and (iiiii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Administrative Agent shall have received a Borrowing Request as set forth in Section 4 above and setting forth the information required by Section 2.03 of the Existing First Lien Credit Agreement, which Borrowing Request may be conditioned upon the effectiveness of this Agreement.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the 2019 Effective Date, simultaneously with the making of the 2018 Repriced 2019 Refinancing Term B Loans, all accrued and unpaid interest and, to the extent required to be paid by the Loan Parties under the Loan Documents, fees and other amounts accrued and unpaid on their the Existing Term B Loans to, but not including, the 2019 Effective Date, and substantially simultaneously with the borrowing of the 2019 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(cd) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Revolving Facility Lender immediately prior to the 2019 Effective Date, all accrued and unpaid interest and, to the extent required to be paid by the Loan Parties under the Loan Documents, fees and other amounts accrued and unpaid on the Existing Revolving Facility Loans (if any) to, but not including, the 2019 Effective Date, and substantially simultaneously with the 2019 Effective Date, the Existing Revolving Facility Loans (if any) shall be paid in full.
(e) The Administrative Agent shall have received a certificate of the Secretary Executive Vice President or Assistant Secretary Vice President or similar officer of each Loan Party dated the 2019 Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since November 20, 2017 (the Closing “November 2017 Effective Date,”);
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the 2019 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing November 2017 Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the 2019 Effective Date,;
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, ; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(df) The Administrative Agent shall have received, on behalf of itself and the 2019 Refinancing Term B Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the 2019 Effective Date, (B) addressed to the Administrative Agent Agent, the 2019 Refinancing Revolving Facility Lenders, the Issuing Banks and the 2019 Refinancing Term B Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(eg) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any 2019 Refinancing Arranger, any 2019 Refinancing Revolving Facility Lender or any 2019 Refinancing Term B Lender, on or prior to the 2019 Effective Date and, to the extent invoiced at least three Business Days prior to the 2019 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the 2019 Effective Date (which amounts may be offset against the proceeds of the 2019 Refinancing Term B Loans made hereunder).
(fh) The Administrative Agent shall have received for the ratable benefit of (i) each 2019 Refinancing Revolving Credit Facility Lender, an upfront fee equal to 0.50% of the 2019 Refinancing Revolving Facility Commitments of each such 2019 Refinancing Revolving Credit Facility Lender and (ii) each 2019 Refinancing Term B Lender, an upfront fee (which may, at the option of such 2019 Refinancing Term B Lender, be taken in the form of original issue discount) equal to 0.50% of the 2019 Refinancing Term B Commitments of such 2019 Refinancing Term B Lender.
(i) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the 2019 Effective Date (i) all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) three Business Days prior to the 2019 Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any 2019 Lender shall have received a Beneficial Ownership Certification in relation to the Borrower to the extent such information has been requested by such 2019 Lender not less than three Business Days prior to the 2019 Effective Date.
(gj) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the 2019 Effective Date, to the effect set forth in Sections 3(b5(b) and 3(d5(d) hereof.
(hk) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received (i) the results of recent UCC lien, judgment and tax searches with respect to each Loan Party and (ii) a Borrowing Request completed standard flood hazard determination form for the real property covered by the Existing Mortgage (as required defined below) and if any improvements to such real property are located in a special flood hazard area, (A) a notification to the Borrower by Section 2.03 the Administrative Agent and countersigned by the Borrower and (B) a copy of the flood insurance policy, the Borrower’s application for a flood insurance policy, a declaration page confirming that flood insurance has been issued, or a Borrowing Request shall have been deemed given in accordance with other evidence of flood insurance reasonably satisfactory to the last paragraph of Section 2.03)Administrative Agent.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (on the date of each Borrowing (each such satisfaction or waiver, the event being called a “Effective DateCredit Event”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, notice of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request such notice shall have been deemed given in accordance with the last paragraph of Section 2.03) together with (i) a Borrowing Base Certificate setting forth the Borrowing Base of the Borrower as of a date no earlier than the end of the most recently ended calendar month and no later than the day immediately preceding the Borrowing, or issuance and purchase, date, together with an updated schedule of Loan Receivables and (ii) an updated and current data tape containing the information required under Section 5.04(e) with respect to the Loan Receivables.
(b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (except representations and warranties that are qualified by materiality or similar qualifiers are true and correct in all respects) on and as of the date of such Credit Event 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.
(c) At the time of and immediately after such Credit Event, no Default or Event of Default shall have occurred and be continuing.
(d) Immediately after giving effect to such Credit Event and the use of proceeds thereof, (i) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.09 and (ii) Aggregate Revolving Credit Exposures shall not exceed the lesser of the Borrowing Base or the Total Commitment.
(e) No Regulatory Notice Event shall have occurred and be continuing or be currently threatened, except in the case of any Regulatory Notice Events for which the Administrative Agent has been notified in accordance with Section 5.05(f) and with respect to any such notified Regulatory Notice Event, the Administrative Agent has not provided notice in writing to the Borrower prior to the time of any requested Borrowing that such Regulatory Notice Event is material (it being understood that this condition (e) shall not be satisfied if the Administrative Agent provides Borrower with written notice prior to the time of such requested Borrowing that such notified Regulatory Notice Event is material), unless: (i) the Administrative Agent has rescinded such written notice or (ii) the Regulatory Notice Event for which the Administrative Agent has provided such a written notice is no longer continuing.
(f) No Material Adverse Effect shall have occurred and be continuing.
(g) The Borrowing date of any Loan and issuance and purchase date of any Revolving Note shall be a Permitted Borrowing Date.
(h) Since the effective date of the most recently delivered Compliance Certificate, the Borrower and the Loan Parties have complied with the Loan Receivable Selection Policy.
(i) The Loan Parties shall have paid or reimbursed the Administrative Agent and the Lenders and Holders for all costs and expenses required to be paid or reimbursed by them on the Permitted Borrowing Date in accordance with Section 9.04 hereof. Each Credit Event shall be deemed to constitute a representation and warranty by the Borrower on the date of such Credit Event as to the matters specified in paragraphs (b), (c), (d), (e), (f), (g) and (h) of this Article IV.
Appears in 1 contract
Samples: Revolving Credit Agreement (Community Choice Financial Inc.)
Conditions of Lending. The obligations of the October 2018 Repricing Refinancing Term B Lenders and the Incremental Term B Lenders to make October 2018 Repriced Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Incremental Term B Loans, in each case as applicable, on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such October 2018 Refinancing Term B Loans or Incremental Term B Loans, as applicable) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the October 2018 Repricing Refinancing Term B Lenders and 2018 Increase or Incremental Term B Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each October 2018 Refinancing Term B Cashless Settlement Repricing Option Lender, each October 2018 Refinancing Term B Post-Closing Repricing Option Lender and each Additional October 2018 Refinancing Term B Lender, (ii) from each 2018 Increase Incremental Term B Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (iiiii) from each of Holdings, the Borrower and Borrower, the Subsidiary Loan PartiesParties and the Revolving Facility Lenders, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing an October 2018 Refinancing Term B Loan Consent, if applicable) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing an October 2018 Refinancing Term B Loan Consent, if applicable).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the October 2018 Repriced Refinancing Term B Loans, all accrued and unpaid interest on their Existing Term B Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since February 7, 2018 (the “Prior Repricing Closing Date”),
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Prior Repricing Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxx Xxxxxx L.L.P.LLP, in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received a solvency certificate substantially in the form of Exhibit C to the Existing Credit Agreement and signed by a Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the incurrence of the October 2018 Refinancing Term B Loans and the Incremental Term B Loans on the Effective Date and the use of proceeds thereof.
(f) The Administrative Agent shall have received all fees payable thereto or to the Refinancing Arranger and the Co-Manager, on or prior to the Effective Date and, to the extent invoiced at least three (3) Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fg) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) Business Days prior to the Effective Date.
(gh) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, Date to the effect set forth in Sections 3(b5(b) and 3(d5(d) hereof.
(hi) At Each Lender party hereto that shall have requested a Beneficial Ownership Certificate not less than five (5) Business Days prior to the Effective Date shall have received such certificate at least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 Date (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation or such lesser time acceptable to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03Lender).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Conditions of Lending. The obligations obligation of the 2018 Repricing Term Lenders Lender to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on advances under the Effective Date, are Loan is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction condition (or waiver in accordance with Section 9.09 addition to all other requirements of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelythis Agreement) that each of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase been delivered or performed with respect to Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loansdisbursement:
9.1 certificates of insurance or insurance binders evidencing public liability insurance in the amount of Two Million Dollars ($2,000,000), workmens’ compensation, in the statutory amount, flood (if the property is in a flood plain), fire and extended coverage in the amount of the full replacement cost of the Collateral and business interruption insurance as set forth in Section 7.2, above, actual loss sustained, written by companies reasonably acceptable to Lender, endorsed thereon in favor of Lender naming Lender as mortgagee, loss payee and naming Lender as an additional insured and providing that the said policies may not be cancelled or materially changed without thirty (30) days prior written notice to Lender, certified copies of such insurance policies shall be deposited with Lender within thirty (30) days of the date hereof;
9.2 a written opinion of the Borrowers’ counsel in form and substance satisfactory to the Lender, stating, inter alia, that: (i) the Borrowers are each validly existing and authorized to do business in the States of its organizational jurisdiction and such other states where authorization is required; (ii) the Borrowers have full authority and legal right to execute and carry out the terms of the Loan Documents; (iii) the Borrowers have taken all accrued action necessary to authorize the execution and unpaid interest delivery of the Loan Documents; (iv) the Loan Documents have been duly executed and are valid, binding and enforceable in accordance with their terms, with no exceptions other than usual and customary exceptions; (v) there is no litigation pending or to the best of the knowledge of Borrowers’ counsel threatened against Borrowers which would have a Material Adverse Effect on their Existing Term Loans to, but ability to perform pursuant to the Loan Documents; (vi) the Loan is not including, usurious; and (vii) containing such other opinions as may be required by the Effective Date.Lender;
(c) The Administrative Agent shall have received 9.3 a certificate of the Secretary or Assistant Secretary or similar a duly authorized officer of each Loan Party dated the Effective Date.
Borrower as to (i) either a copy of its articles of agreement/organization, bylaws, and/or operating agreement, (xii) attaching a copy of the certificate or articles of incorporationresolution adopted by the directors, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, shareholders (if necessary) and/or members of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) Borrower authorizing execution and issuance of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or HoldingsDocuments, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy list of the by-laws (or partnership agreementincumbent officers, limited liability company agreement or other equivalent constituent members and governing documents) managers of such Borrower;
9.4 the executed Loan Party as Documents and supporting documentation, in effect on form, scope and substance acceptable to Lender and its counsel;
9.5 satisfactory subordination agreement for the Effective Date Subordinated Debt;
9.6 Borrowers will use best efforts to obtain landlord’s waivers and at all times since a date prior to consents, said waivers and consents may be delivered after the date hereof;
9.7 an assignment of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of a $4,000,000 key man life insurance policy on Xxxxxxx X. Day;
9.8 receipt of those matters set forth on a Closing Agenda from the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior Lender to the Effective Date Borrowers; and
9.9 payment of all documentation out of pocket expenses incurred by Lender, including, but not limited to appraisal fees and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Datelegal fees.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Conditions of Lending. Conditions Precedent to Initial Loans and Initial Letters of Credit. The obligations ------------------------------------------------------------------- obligation of the 2018 Repricing Term Lenders Banks to make 2018 Repriced Term the initial Loans and or the Fronting Bank to issue the initial Letter of the 2018 Increase Lenders Credit, whichever may occur first, is subject to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) precedent: Supporting Documents. The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate for each of the Secretary or Assistant Secretary or similar officer of each Loan Party dated Borrower and -------------------- the Effective Date.
(i) either (x) attaching Guarantors: a copy of the such entity's certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Partyas amended, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, ; a certificate of limited partnershipsuch Secretary of State, certificate dated as of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate recent date, as to the good standing (of and payment of taxes by that entity and as to the extent such concept or a similar concept exists under charter documents on file in the laws office of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State State; and a certificate of the Secretary or an Assistant Secretary of that entity dated the date of the initial Loans or the initial Letter of Credit hereunder, whichever first occurs, and certifying (or other similar official),
(iiiA) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party that entity as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause such certification, (ivB) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) that entity authorizing the Borrowings and Letter of Credit extensions hereunder, the execution, delivery and performance in accordance with their respective terms of this Agreement, the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, and any other documents required or contemplated hereunder or thereunder and the granting of the security interest in the case Letter of Credit Account, (C) that the certificate of incorporation of that entity has not been amended since the date of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect last amendment thereto indicated on the Effective Date,
certificate of the Secretary of State furnished pursuant to clause (vi) certifying above and (D) as to the incumbency and specimen signature of each officer of that entity executing this Agreement and the Loan Documents or any Loan Document executed other document delivered by it in connection with this Agreement on behalf herewith or therewith (such certificate to contain a certification by another officer of such Loan Party, and
(vi) certifying that entity as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself incumbency and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds signature of the Loans made hereunderofficer signing the certificate referred to in this clause (iii)).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Armstrong World Industries Inc)
Conditions of Lending. The obligations of the 2018 Repricing 2016 Refinancing Term B Lenders and the Incremental Term B Lenders to make 2018 Repriced 2016 Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Incremental Term B Loans, in each case as applicable, on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing First Lien Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2016 Refinancing Term B Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each Incremental Term B Lender and (iii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Administrative Agent shall have received a Borrowing Request as set forth in Section 4 above and in accordance with Section 2.03 of the Credit Agreement.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2016 Refinancing Term B Loans, all accrued and unpaid interest interest, fees and other amounts accrued and unpaid on their the Existing Term B Loans to, but not including, the Effective Date, and substantially simultaneously with the borrowing of the 2016 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(cd) Substantially simultaneously with the borrowing of the Incremental Term B Loans, all outstanding principal amounts under the Second Lien Credit Agreement shall be paid in full, together with all accrued and unpaid interest, fees and other amounts accrued and unpaid thereunder and all Liens granted thereby in favor of the Secured Parties (as defined in the Second Lien Credit Agreement) shall have been released and discharged.
(e) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(df) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) XxxxPxxx, Weiss, Rifkind, Xxxxxxx Wxxxxxx & Xxxxxxxx Gxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(eg) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2016 Refinancing Arranger, any 2016 Refinancing Term B Lender or any Incremental Term B Lender, on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Dxxxx Xxxx & Wxxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fh) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested not less than five three (53) Business Days prior to the Effective Date.
(gi) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer Person of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b5(b) and 3(d5(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(ij) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given received, for the account of the Incremental Term B Lenders, upfront fees in accordance with an amount equal to 0.25% of the last paragraph of Section 2.03)Incremental Term B Loan Commitments.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. The obligations effectiveness of this Agreement, and the 2018 Repricing Term Lenders obligation of each Lender to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional fund its Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgent’s receipt of the following, each Post-Closing Repricing Lenderof which shall be originals or telecopies or pdf or similar electronic copies (followed promptly by originals) unless otherwise specified, and in the case of documents delivered by the Borrower, each 2018 Increase Lender and properly executed by a Responsible Officer of the other Lenders party hereto Borrower, each dated the Closing Date (that together constitute at least or, in the Required Lenderscase of certificates of governmental officials, a recent date before the Closing Date) and (ii) from each of Holdings, the Borrower in form and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably substance satisfactory to the Administrative Agent and each of the Lenders:
(which may include delivery of a signed signature page i) executed counterparts of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).Agreement;
(bii) The a Note executed by the Borrower shall have paid to the Administrative Agent, for the ratable account in favor of each Existing Term Lender immediately requesting a Note at least one Business Day prior to the Effective Closing Date, simultaneously with the making
(iii) counterparts of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, Guaranty executed by each of the Effective Date.Guarantors;
(civ) The a Security Agreement duly executed by each Loan Party owning any Collateral, together with:
(A) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(B) such Lien searches as the Administrative Agent shall have received requested and completed requests for information, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party that owns any Collateral as debtor, together with copies of such financing statements, and such Document Number: 1345735 -61- termination statements or other documents as may be necessary to confirm that the Collateral is subject to no Liens in favor of any Persons (other than the Liens securing the Obligations and the Liens permitted by Section 7.01), provided, that, with respect to any Collateral the security interest in which may not be perfected by filing a certificate UCC financing statement, if perfection of the Secretary Administrative Agent’s security interest in such Collateral may not be accomplished on or Assistant Secretary before the Closing Date after the Borrower’s and its Restricted Subsidiaries’ use of commercially reasonable efforts to do so, then the failure to perfect such security interest shall not constitute a failure to satisfy any of the conditions set forth in Section 4.01(a)(iv);
(v) certified copies of the resolutions or similar officer authorizations of the Board of Directors or members, as applicable, of each Loan Party dated the Effective Date.
(i) either (x) attaching approving each Loan Document to which it is or is to be a copy party, and of the certificate all documents evidencing other necessary corporate or articles of incorporationlimited liability company action, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments theretoas applicable, of such each Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) if any, with respect to any each Loan Party other than the Borrower Document to which it is or Holdings, certifying there have been no changes is to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,be a party;
(iivi) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws incumbency certificates and/or other certificates of such jurisdiction) Responsible Officers of such each Loan Party as the Administrative Agent may require evidencing the identity and capacity of each Responsible Officer thereof authorized to act as a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is party;
(vii) (A) a party and, in the case copy of a certificate of the Borrower, Secretary of State of the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on jurisdiction of formation of each Loan Party dated reasonably near the Effective Date,
Closing Date certifying (v1) certifying as to a true and correct copy of the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation Organization Documents of such Loan Party or, to the knowledge and each amendment thereto on file in such Secretary of State’s office along with copies of such person, threatening Organizational Documents and relevant amendments thereto and (2) that such amendments are the existence of only amendments to such Loan Party.
(d) The Administrative Agent shall have received’s Organizational Documents on file in such Secretary of State’s office, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and a good standing certificate (Cor equivalent document) in form and substance reasonably satisfactory to the Administrative Agent covering for each Loan Party from such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid Loan Party’s jurisdiction of organization dated a recent date on or prior to the Effective Date (which amounts may be offset against the proceeds date of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit this Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).;
Appears in 1 contract
Samples: Term Loan Credit Agreement (Western Refining, Inc.)
Conditions of Lending. The obligations obligation of the 2018 Repricing Term Lenders each Lender to make 2018 Repriced Term Loans and of advances to the 2018 Increase Lenders to make Additional Term Loans, in each case Borrowers on the Effective Date, are Closing Date is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) 9.08 of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance Each of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as other documentation relating to the incumbency and specimen signature of each officer executing any Term Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent provided hereunder shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) be in form and substance reasonably satisfactory to the Administrative Agent covering and duly executed and delivered by each of the Loan Parties and other parties thereto.
(b) Administrative Agent shall have received, in respect of each Loan Party,
(i) the notes payable to the order of the Lenders to the extent requested at least three Business Days prior to the Closing Date in accordance with Section 2.04(e);
(ii) copies of each organizational or constitutive document (along with any amendments thereto) certified as of the Closing Date or a recent date prior thereto by the appropriate Governmental Authority;
(iii) certificate of the secretary or an assistant secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(iv) resolutions of the board of directors (or similar governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and
(v) a good standing certificate from the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation dated the Closing Date or a recent date prior thereto.
(c) All reasonable and documented out-of-pocket fees and expenses (including reasonable and documented fees and expenses of outside counsel) required to be paid to the Administrative Agent on or before the Closing Date shall have been paid (including fees owed to the Lenders to be paid to the Administrative Agent for the accounts of the Lenders), to the extent invoiced at least three Business Days prior to the Closing Date.
(d) The Administrative Agent and Lenders and their respective counsel shall have received originally executed copies of a favorable written opinion of Xxxx Xxxxx Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the Loan Parties, dated as of the Closing Date, addressing such matters relating to this Agreement as the Administrative Agent shall may reasonably requestrequest in form and substance reasonably satisfactory to the Administrative Agent.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid on or prior to received a certificate from the Effective Date (which amounts may be offset against chief financial officer of Holdings substantially in the proceeds form of the Loans made hereunder).Exhibit I.
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information a completed Perfection Certificate, dated as of the type set forth in Section 3.23(a) Closing Date and signed by a Financial Officer of the Existing Credit AgreementBorrowers, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Datetogether with all attachments contemplated thereby.
(g) The Borrower shall have delivered to Since the Administrative Agent a certificate from a Responsible Officer date of the Borrower dated as Asset Purchase Agreement until the consummation of the Effective DateSpecified Acquisition, there shall not have occurred any event, change, circumstance or effect that, individually or in the aggregate, has resulted in or would reasonably be expected to result in a Specified Material Adverse Effect. A “Specified Material Adverse Effect” means any event, change, circumstance or effect that, individually or in the effect set forth aggregate, materially and adversely affects the business, operations, assets, Liabilities (as defined in Sections 3(bthe Asset Purchase Agreement) and 3(d) hereof.
(h) At least three including contingent Liabilities), results of operations or the financial condition of the Business (3) Business Days prior to as defined in the Effective DateAsset Purchase Agreement), any Borrower that qualifies taken as a “legal entity customer” under 31 C.F.R. §1010.230 (whole; provided, however, that none of the “Beneficial Ownership Regulation”) shall deliverfollowing, to each Lender that so requestseither alone or in combination, will constitute, or be considered in determining whether there has been, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
Specified Material Adverse Effect: any event change, circumstance or effect resulting from or arising out of (i) The Administrative Agent shall have received any outbreak or escalation of war, civil unrest, or major hostilities or any act of terrorism; (ii) any earthquake, hurricane, storm, flood or other natural disaster; (iii) changes or developments in applicable law, statute, constitution, ordinance, code, regulation, rule, treaty or other requirement of any governmental authority, United States generally accepted accounting principles or enforcement or interpretation thereof arising after the date hereof; (iv) effects or changes that are generally applicable to the industry in which the Business operates; (v) changes in financial markets, general economic conditions (including prevailing interest rates, exchange rates, commodity prices and fuel costs) or political conditions; (vi) any failure, in and of itself, of the Business to meet any published or internally prepared projections, budgets, plans or forecasts of revenues, earnings or other financial performance measures or operating statistics (it being understood that the facts or circumstances underlying any such failure that are not otherwise excluded from the definition of a Borrowing Request as required by Section 2.03 “Specified Material Adverse Effect” may be considered in determining whether there has been a Specified Material Adverse Effect); (vii) any action taken or a Borrowing Request shall have been deemed given failed to be taken at the written request of, or consented to in accordance writing by, HMCo (with the last paragraph written consent of Section 2.03the Arrangers).; or
Appears in 1 contract
Samples: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Conditions of Lending. The obligations of the 2018 Repricing Refinancing Term B Lenders to make 2018 Repriced Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such 2018 Refinancing Term B Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing Refinancing Term Lenders and 2018 Increase B Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each 2018 Refinancing Term B Cashless Settlement Repricing Lender, each Post-Closing Repricing Option Lender, each 2018 Increase Refinancing Term B Post-Closing Option Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) each Additional 2018 Refinancing Term B Lender and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing 2018 Refinancing Term B Loan Consent, if applicable) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing 2018 Refinancing Term B Loan Consent, if applicable).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Refinancing Term B Loans, all accrued and unpaid interest on their Existing Term B Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since December 6, 2017 (the “Prior Incremental Closing Date”),
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Prior Incremental Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the 2018 Refinancing Term B Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxx Xxxxxx L.L.P.LLP, in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the 2018 Refinancing Term B Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received a solvency certificate substantially in the form of Exhibit C to the Existing Credit Agreement and signed by a Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the incurrence of the 2018 Refinancing Term B Loans on the Amendment Effective Date and the use of proceeds thereof.
(f) The Administrative Agent shall have received all fees payable thereto or to the Refinancing Arranger, on or prior to the Effective Date and, to the extent invoiced at least three (3) Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fg) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) Business Days prior to the Effective Date.
(gh) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, Date to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing 2016 Refinancing Term B Lenders and the Incremental Term B Lenders to make 2018 Repriced 2016 Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Incremental Term B Loans, in each case as applicable, on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing First Lien Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2016 Refinancing Term B Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each Incremental Term B Lender and (iii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Administrative Agent shall have received a Borrowing Request as set forth in Section 4 above and in accordance with Section 2.03 of the Credit Agreement. 4
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2016 Refinancing Term B Loans, all accrued and unpaid interest interest, fees and other amounts accrued and unpaid on their the Existing Term B Loans to, but not including, the Effective Date, and substantially simultaneously with the borrowing of the 2016 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(cd) Substantially simultaneously with the borrowing of the Incremental Term B Loans, all outstanding principal amounts under the Second Lien Credit Agreement shall be paid in full, together with all accrued and unpaid interest, fees and other amounts accrued and unpaid thereunder and all Liens granted thereby in favor of the Secured Parties (as defined in the Second Lien Credit Agreement) shall have been released and discharged.
(e) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
. (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
, (ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
, (iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
, (iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
, 5 (v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
and (vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(df) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(eg) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2016 Refinancing Arranger, any 2016 Refinancing Term B Lender or any Incremental Term B Lender, on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fh) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested not less than five three (53) Business Days prior to the Effective Date.
(gi) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer Person of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b5(b) and 3(d5(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(ij) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given received, for the account of the Incremental Term B Lenders, upfront fees in accordance with an amount equal to 0.25% of the last paragraph of Section 2.03)Incremental Term B Loan Commitments.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing 2023 Incremental Term Lenders A Lender to make 2018 Repriced 2023 Incremental Term A Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the 2023 Effective Date, Date are subject (prior to, at the time of or substantially concurrently with the making of such the 2023 Incremental Term A Loans) to the satisfaction (or waiver in accordance with Section 9.09 of by the Existing Credit Agreement or by a majority of the 2018 Repricing 2023 Incremental Term Lenders and 2018 Increase Lenders, collectivelyA Lender) of the following conditions (the date of such satisfaction or waiver, the “2023 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the 2023 Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,;
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the 2023 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the executive committee of the board of managers or Board of Directors (or equivalent governing body) ), as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the BorrowerBorrowers, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the 2023 Effective Date,;
(v) either (x) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, Party or (y) certifying that there have been no changes to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the Closing Date; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(db) The Administrative Agent shall have received, on behalf of itself and the Lenders2023 Incremental Term A Lender, the a written opinions opinion of (i) XxxxPxxx, WeissWxxxx, RifkindRxxxxxx, Xxxxxxx Wxxxxxx & Xxxxxxxx Gxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the 2023 Effective Date, (B) addressed to the Administrative Agent and the Lenders 2023 Incremental Term A Lender on the 2023 Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ec) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to the 2023 Incremental Term A Lender on or prior to the 2023 Effective Date and, to the extent invoiced at least three Business Days prior to the 2023 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the 2023 Effective Date (which amounts may be offset against the proceeds of the 2023 Incremental Term A Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(gd) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the 2023 Effective Date, to the effect set forth in Sections 3(b4.01(b) and 3(d(c) hereofof the Existing Credit Agreement.
(he) At least three The Borrower shall have delivered to the Administrative Agent a solvency certificate substantially in the form of the solvency certificate delivered on the Closing Date (3as modified so that such certification shall be made on the 2023 Effective Date after giving effect to the incurrence of the 2023 Incremental Term A Loans).
(f) Business Days On or prior to the 2023 Effective Date, any Borrower ADTSC shall have issued an irrevocable notice of redemption to redeem at least $50,000,000 of the outstanding 2023 Notes, which notice of redemption shall provide that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (such 2023 Notes to be redeemed shall be redeemed on the “Beneficial Ownership Regulation”) shall deliver, to each Lender date that so requests, a certification regarding beneficial ownership as required by is no later than 30 days after the Beneficial Ownership Regulation in relation to such Borrower2023 Effective Date.
(ig) The Borrowers shall have delivered to the Administrative Agent a Borrowing Request in respect of the 2023 Incremental Term A Loans no later than 1:00 p.m., New York City time, one Business Day prior to the 2023 Effective Date (or such later time as the Administrative Agent may agree). For purposes of determining compliance with the conditions specified in this Section 6, the 2023 Incremental Term A Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the 2023 Incremental Term A Lender unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received a Borrowing Request notice from the 2023 Incremental Term A Lender prior to the 2023 Effective Date specifying its objection thereto and the 2023 Incremental Term A Lender shall not have made available the 2023 Incremental Term A Loans to the Borrowers. No representations or warranties under the Loan Documents will be deemed made on the 2023 Effective Date other than those referred to in paragraph (d) above. Notwithstanding anything in this Agreement to the contrary, in the event that (i) the 2023 Effective Date does not occur on or before the scheduled maturity date of the 2023 Notes (as required by Section 2.03 in effect on the Agreement Effective Date) or (ii) the 2023 Notes are redeemed or a Borrowing Request purchased in full prior to the 2023 Effective Date without the use of the 2023 Incremental Term A Loans, then (x) this Agreement, the 2023 Incremental Term A Loan Commitments and the obligations of the 2023 Incremental Term A Lender to provide 2023 Incremental Term A Loans to the Borrowers as set forth herein shall have been deemed given automatically terminate without further action or notice and without further obligation to the Borrowers or any other Loan Party unless the 2023 Incremental Term A Lender shall otherwise agree and (y) in the event that this Agreement is terminated in accordance with clause (x) above, then the last paragraph Existing Credit Agreement shall remain in full force and effect in accordance with its terms without giving effect to this Agreement. For the avoidance of Section 2.03)doubt, the Ticking Fee (as defined in the Fee Letter, dated as of the date hereof, among the Borrowers and the 2023 Incremental Term A Lender) shall be payable to the Administrative Agent for the benefit of the 2023 Incremental Term A Lender upon any such termination described in the preceding sentence.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions of Lending. The effectiveness of this Agreement and the obligations of the 2018 Repricing 2024 Incremental Super-Priority Term Lenders to make 2018 Repriced 2024 Incremental Super-Priority Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of by the Existing Credit Agreement or by a majority of the 2018 Repricing 2024 Incremental Super-Priority Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction conditions are satisfied or waiverwaived, the “2024 Incremental Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received from (i) from each Cashless Settlement Repricing Lender, each Post2024 Incremental Super-Closing Repricing Lender, each 2018 Increase Priority Term Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan PartiesParty, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower Administrative Agent shall have paid received, on behalf of itself and the 2024 Incremental Super-Priority Term Lenders, a written opinion of Xxxx, Xxxxx, Rifkind, Xxxxxxx & Xxxxxxxx LLP, as special counsel for the Loan Parties, (A) dated as of the 2024 Incremental Effective Date, (B) addressed to each Administrative Agent and the 2024 Incremental Super-Priority Term Lenders on the 2024 Incremental Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, for Agent covering such customary matters relating to this Agreement as the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective DateAdministrative Agent shall reasonably request.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party Party, dated as of the 2024 Incremental Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate of the Secretary or articles Assistant Secretary or similar officer of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such each Loan Party since delivered in connection with the Closing Date,Existing Credit Agreement; and
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),.
(d) On and as of the 2024 Incremental Effective Date, (i) the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Existing Credit Agreement shall be satisfied, (ii) the representations in Section 4 of this Agreement shall be true and correct in all material respects and (iii) either (x) certifying that attached thereto is the Administrative Agent shall have received a true and complete copy certificate of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case Responsible Officer of the Borrower, dated the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the 2024 Incremental Effective Date,
, confirming compliance with the conditions set forth in the foregoing clauses (vi) certifying as to the incumbency and specimen signature (ii) of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
paragraph (vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Partyd).
(de) The Administrative Agent shall have receivedreceived all fees payable thereto or to its affiliates, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the 2024 Incremental Effective Date and, to the extent invoiced at least three Business Days prior to the 2024 Incremental Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (which amounts may including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be offset against reimbursed or paid by the proceeds of Loan Parties hereunder or under the Loans made hereunder)Existing Credit Agreement on or prior to the 2024 Incremental Effective Date.
(f) The Administrative Agent shall have received on or prior a solvency certificate substantially in the form of Exhibit C to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, Agreement (as modified so that such certification shall be made on the 2024 Incremental Effective Date after giving effect to the extent such information has been requested not less than five (5) Business Days prior to incurrence of the Effective Date2024 Incremental Super-Priority Term Loans).
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer Borrowing Request in respect of the Borrower dated as of the Effective Date2024 Incremental Super-Priority Term Loans no later than 12:00 noon, New York time, two Business Days prior to the effect set forth in Sections 3(b) and 3(d) hereof2024 Incremental Effective Date (or such later time as the Administrative Agent may agree).
(h) At least three (3) Business Days prior to the Effective Date, any The Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required paid all accrued and unpaid fees and expenses of Xxxxxx, Xxxx & Xxxxxxxx LLP and Centerview Partners LLC, in each case, by Section 2.03 (or a Borrowing Request shall have been deemed given wire transfer in immediately available funds in accordance with instructions provided to the last paragraph Borrower by such advisors for which an invoice has been received by the Borrower by no later than two Business Days before the 2024 Incremental Effective Date (inclusive of Section 2.03any reasonable estimate of fees and expenses through and including the 2024 Incremental Effective Date), in each case consistent with the existing fee payment arrangements between the Borrower and such advisors under any engagement letters or other agreements.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing November 2017 Refinancing Term B Lenders to make 2018 Repriced November 2017 Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the November 2017 Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing November 2017 Refinancing Term Lenders and 2018 Increase B Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “November 2017 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase November 2017 Refinancing Term B Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Administrative Agent shall have received a Borrowing Request as set forth in Section 3 above and setting forth the information required by Section 2.03 of the Existing First Lien Credit Agreement, which Borrowing Request may be conditioned upon the effectiveness of this Agreement.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the November 2017 Effective Date, simultaneously with the making of the 2018 Repriced November 2017 Refinancing Term B Loans, all accrued and unpaid interest and, to the extent required to be paid by the Loan Parties under the Loan Documents, fees and other amounts accrued and unpaid on their the Existing Term B Loans to, but not including, the November 2017 Effective Date, and substantially simultaneously with the borrowing of the November 2017 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(cd) The Administrative Agent shall have received a certificate of the Secretary Executive Vice President or Assistant Secretary Vice President or similar officer of each Loan Party dated the November 2017 Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings., certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since May 19, 2017 (the Closing “May 2017 Effective Date,”);
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the November 2017 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing May 2017 Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the November 2017 Effective Date,;
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, ; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(de) The Administrative Agent shall have received, on behalf of itself and the November 2017 Refinancing Term B Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the November 2017 Effective Date, (B) addressed to the Administrative Agent and the November 2017 Refinancing Term B Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ef) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any November 2017 Refinancing Arranger or any November 2017 Refinancing Term B Lender, on or prior to the November 2017 Effective Date and, to the extent invoiced at least three Business Days prior to the November 2017 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the November 2017 Effective Date (which amounts may be offset against the proceeds of the November 2017 Refinancing Term B Loans made hereunder).
(fg) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the November 2017 Effective Date all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) three Business Days prior to the November 2017 Effective Date.
(gh) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the November 2017 Effective Date, to the effect set forth in Sections 3(b4(b) and 3(d4(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. The obligations obligation of each Lender to fund the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are Closing Date hereunder is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgents receipt of the following, each Post-Closing Repricing Lenderof which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) properly executed by a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making Responsible Officer of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each signing Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andthereto, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to and its legal counsel:
(i) executed counterparts of this Agreement as (including all of the Administrative Agent shall reasonably request.Lenders party hereto);
(eii) All fees and expenses payable under the engagement letter or otherwise an Initial Loan Note executed by Borrower in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds favor of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to each Lender that has requested an Initial Loan Note more than three (3) Business Days prior to the Effective Closing Date;
(iii) except where delivery after the Closing Date is contemplated therein, each Security Document set forth on Schedule 4.01(a)(iii) hereto, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied, if applicable, by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, and
(B) where appropriate and customary in each relevant jurisdiction where the Guarantors are organized, evidence that all documentation other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (and as have been notified to Borrower or its counsel no later than three (3) Business Days prior to the Closing Date) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other information action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (and as have been notified to Borrower no later than three (3) Business Days before the Closing Date) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(A) the executed legal opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special U.S. counsel to the Company and certain other Loan Parties, substantially in the form of Exhibit H; and
(B) the executed legal opinion of local counsel to the Lenders or the Loan Parties, as applicable, in the jurisdictions listed on Schedule 4.01(a)(v)(B), in form and substance reasonably satisfactory to the Administrative Agent;
(C) a certificate signed by a Company Financial Officer certifying that since the date of the type set forth in Acquisition Agreement there has been no Material Adverse Change;
(vi) a certificate signed by a Company Financial Officer attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transactions, from;
(vii) except as contemplated by Section 3.23(a6.14(a) of the Existing Senior Secured Credit Facilities, evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee, mortgagee and additional insured under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named;
(viii) a Borrowing Request relating to the Borrowings made on the Closing Date; and
(ix) the Intercreditor Agreement, executed and delivered by a duly authorized officer of the applicable Loan Parties and of the Collateral Agent and other agents party thereto;
(b) prior to or substantially simultaneously with the Loans made on the Closing Date, arrangements reasonably satisfactory to the Joint Lead Arrangers shall have been made to pay all fees and expenses (to the extent invoices for such information has expenses have been requested not less than provided at least five (5) Business Days prior to the Effective Closing Date) required to be paid hereunder by the Company or Borrower from the Borrowings made on the Closing Date;
(c) prior to or substantially simultaneously with the Initial Loans made on the Closing Date, the Acquisition shall have been consummated in accordance with the terms of the Acquisition Agreement except for the filing of the merger certificate which shall occur substantially concurrently, without giving effect to any amendments or waivers thereto (excluding any waiver by Lyondell of the conditions set forth in Section 6.3(a)(i) of the Acquisition Agreement) that are materially adverse to the Lenders made without reasonable consent of the Joint Lead Arrangers (such consent not to be unreasonably withheld or delayed), and in compliance with applicable material Laws and regulatory approvals;
(d) all of the conditions precedent included in Article IV of the Senior Secured Credit Facilities have been satisfied or waived and the Senior Secured Credit Facilities remain in full force and effect;
(e) the Company and its subsidiaries shall have outstanding no Financial Indebtedness or Disqualified Equity Interests other than (A) the Initial Loan, (B) the loans under the Senior Secured Credit Facilities, (C) the Existing Notes, (D) Existing Indebtedness (including letters of credit issued and outstanding on the Closing Date), and (E) the Asset Backed Credit Facility, Receivables Financing and Securitization Transactions and (F) liabilities incurred in the ordinary course of business and (G) liabilities disclosed in the Pro Forma Financial Statements, in each case to the extent permitted by Section 5.08;
(f) the Administrative Agent shall have received all documentation and other information mutually agreed to be required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including the Patriot Act.
(g) The representations and warranties of Borrower and each other Loan Party contained in Article 3 or any other Loan Document shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated be true and correct in all material respects on and as of the Effective Closing Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to No Default shall exist or would result from such proposed Borrowing or from the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (application of the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrowerproceeds therefrom.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03)requirements hereof.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced the New Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case hereunder on the Effective Date, Restatement Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III hereof and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing 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.
(c) The Borrower and each other Loan Party shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed at or prior to the time of such Borrowing, and at the time of and immediately after such Borrowing, no Event of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) Xxxxxxx Xxxxxx L.L.P., counsel for the Borrower, substantially to the effect set forth in Exhibit G-1, and (ii) each local counsel listed on Schedule 4(d), substantially to the effect set forth in Exhibit G-2, in each case (A) dated the Restatement Date, (B) addressed to the Administrative Agent and the Lenders and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) a certificate, dated the Restatement Date and signed by the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
Party, certifying that (iA) either (x) attaching a copy of except as set forth on any schedule attached thereto, the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents incorporation of such Loan Party previously delivered on the Closing Date (or such later date on which such person became a Loan Party) have not been amended since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws date of such jurisdictiondelivery, (B) of such Loan Party except as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that set forth on any schedule attached thereto is a true and complete copy of thereto, the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect and delivered on the Effective Closing Date and at all times (or such later date on which such person became a Loan Party) have not been amended since a date prior to the date of the resolutions described in clause such delivery, (ivC) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Amendment Agreement (including Exhibit A thereto in the form of this Agreement) and the other Loan Documents executed in connection with this Agreement to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on effect, (D) attached thereto is a certificate as to the Effective Date,
good standing of such Loan Party as of a recent date by the Secretary of State (vor other similar official) certifying of the jurisdiction of its organization, and (E) as to the incumbency and specimen signature of each officer executing the Amendment Agreement or any other Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
; (viii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of clause (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP above; and (iiiii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated such other documents as the Effective Date, (B) addressed to Lenders or the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fg) The Administrative Agent shall have received on or prior to three (3) Business Days prior to a certificate, dated the Effective Restatement Date all documentation and other information signed by a Financial Officer of the type Borrower, confirming compliance with the conditions precedent set forth in Section 3.23(aparagraphs (b) and (c) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereofthis Article IV.
(h) At least three The Administrative Agent shall have received the financial statements and opinion referred to in Section 3.05 (3) Business Days prior which shall not reflect a material adverse change in the financial condition of the Borrower from the forecasts previously provided to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (Lenders in the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such BorrowerConfidential Information Memorandum).
(i) The Administrative Agent shall have received a Borrowing Request as all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(j) The Security Documents shall be in full force and effect on the Restatement Date, and each document (including Uniform Commercial Code financing statements and modifications to the Mortgages referred to in Section 3.04(a)) required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create or continue in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority Lien on, and security interest in, the Collateral (subject to any Liens expressly permitted by Section 2.03 (or a Borrowing Request 6.02) shall have been deemed given delivered to the Collateral Agent. The Pledged Collateral (as defined in the Guarantee and Collateral Agreement) and the Foreign Pledged Collateral shall be duly and validly pledged under the Guarantee and Collateral Agreement or the applicable Foreign Pledge Agreement, as the case may be, to the Collateral Agent for the benefit of the Secured Parties, and certificates representing such Pledged Collateral and Foreign Pledged Collateral, in each case accompanied by instruments of transfer and stock powers endorsed in blank, shall have been delivered to the Collateral Agent.
(k) The Collateral Agent shall have received a certificate, dated the Restatement Date and signed by a Responsible Officer of the Borrower, certifying that, except as set forth on any schedule attached thereto, the information set forth on the Perfection Certificate is complete, correct and accurate as of the Restatement Date.
(l) The Amendment Agreement shall have become effective in accordance with its terms.
(m) The Existing Term Loans (to the last paragraph extent such Existing Term Loans are not exchanged for New Term Loans as provided for in the Amendment Agreement), together with accrued and unpaid interest thereon, shall have been repaid, or shall be repaid simultaneously with the Borrowing of Section 2.03)the New Term Loans hereunder.
(n) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Second Lien Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or Preferred Equity Interests other than (a) Indebtedness outstanding under this Agreement and (b) Indebtedness set forth on Schedule 6.01.
(o) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the Transactions or the other transactions contemplated hereby.
(p) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced the Term Loans and hereunder on the Closing Date are subject to the satisfaction of the 2018 Increase Lenders to make Additional Term Loansfollowing conditions:
(a) The Administrative Agent shall have received a notice of Borrowing as required by Section 2.03.
(i) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or, if a representation or warranty is already qualified by materiality or Material Adverse Effect, in each all respects) on and as of the date of the Borrowing of such Term Loans 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 on the Effective Datesuch representations and warranties shall be true and correct in all material respects (or, are subject if a representation or warranty is already qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date and (ii) at the time of and immediately after the Borrowing of such Term Loans, no Default or substantially concurrently Event of Default shall have occurred and be continuing.
(c) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the chief executive or the chief financial officer of the Borrower Agent, confirming compliance with the making of such Loans) to the satisfaction conditions set forth in paragraph (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):b).
(ad) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (xA) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (yB) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery facsimile or PDF transmission of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies (or facsimile or PDF copies) of the Loan Documents identified on Schedule 4(d) and the other certificates, documents and instruments and agreements identified on Schedule 4(d), including any promissory notes requested by a Repricing Consent)Lender pursuant to Section 2.04(e) payable to the order of each such requesting Lender.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(ce) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Secretary or Closing Date and executed by its Secretary, Assistant Secretary or similar officer authorized manager or director, which shall (A) certify the resolutions of each Loan Party dated the Effective Date.
(iits Board of Directors, Board of Managers, member(s) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) body authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party it is a party andparty, in (B) identify by name and title and bear the case signatures of the Borrower, the borrowings hereunder, Financial Officers and that such resolutions have not been modified, rescinded any other officers or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation managers of such Loan Party or, authorized to sign (and who will be signing) the knowledge Loan Documents to which it is a party and (C) have attached the certificate or articles of such person, threatening incorporation or organization of each Loan Party certified by the existence relevant authority of the jurisdiction of organization of such Loan Party.
(d) The Administrative Agent shall have receivedParty and a true and correct copy of its by-laws, on behalf memorandum and articles of itself and the Lendersassociation or operating, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP management or partnership agreement; and (ii) Xxxxxxx Xxxxxx L.L.P.a long form certificate of good standing, in status or compliance, as applicable, for each case, Loan Party from its jurisdiction of organization (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) extent such concept is relevant or applicable in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunderjurisdiction).
(f) The Administrative Agent shall have received on or prior to three a favorable written opinion (3) Business Days prior addressed to the Effective Date all documentation Administrative Agent and other information of the type set forth in Section 3.23(aLenders and dated the Closing Date) of the Existing Credit Agreementeach of [●] and [●], each as special counsel to the extent such information has been requested not less than five (5) Business Days prior Loan Parties, in form and substance reasonably satisfactory to the Effective DateAdministrative Agent and covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(g) The Borrower shall have delivered to Lenders and the Administrative Agent a certificate from a Responsible Officer of shall have received, on or prior to the Borrower dated as of the Effective Closing Date, (i) all Fees and other amounts required under the Engagement Letter or any Loan Document to be paid on or prior to the effect set forth in Sections 3(bClosing Date and (ii) reimbursement of all expenses required to be reimbursed or paid under any Loan Document (including the reasonable and documented fees and expenses of legal counsel) and 3(d) hereoffor which invoices have been presented at least one Business Day before the Closing Date.
(h) At least three (3) Business Days The Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions where assets of the Loan Parties are located, and such search report shall reveal no liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.02 or discharged on or prior to the Effective Date, any Borrower that qualifies as Closing Date pursuant to a “legal entity customer” under 31 C.F.R. §1010.230 (pay-off letter or other documentation reasonably satisfactory to the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such BorrowerAdministrative Agent.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 satisfactory pay-off letter (or a Borrowing Request other reasonably satisfactory evidence) for all Indebtedness (other than unmatured contingent obligations) under the Existing Credit Agreement, confirming that all Guarantees thereof will be released, and all Liens thereunder will be terminated concurrently with the payment described therein.
(j) The Restructuring shall have been deemed given consummated.
(k) The Borrower Agent shall have received cash proceeds (before deduction of related costs and expenses) of at least $50,000,000 from the issuance and sale by it of a like principal amount of preferred equity on terms reasonably acceptable to the Administrative Agent (the “Equity Financing”).
(l) The Tender Offer shall have been consummated or shall be consummated substantially concurrently with, and on the same day as, the Closing Date.
(m) The Revolving Credit Facility Agreement shall have become effective in accordance with its terms.
(n) Each document (including any UCC financing statement but excluding any Mortgages or UCC-1 fixture filings) required by the last paragraph Security Documents or under law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Agents, the Lenders and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other person (other than the rights of persons pursuant to Liens permitted by Section 2.036.02 and, with respect to the Revolving Facility First Priority Collateral, the Revolving Facility Secured Parties), shall be in proper form for filing, registration or recordation.
(o) The Administrative Agent shall have received evidence of insurance coverage (excluding title insurance, evidence of which shall be provided pursuant to Section 5.14) in form, scope and substance reasonably satisfactory to the Administrative Agent and otherwise in compliance with the applicable terms of the Guarantee and Collateral Agreement and Section 5.02 of this Agreement.
(p) The Lenders shall have received, at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing 2017 Refinancing Term B Lenders and the Incremental Term B Lenders to make 2018 Repriced 2017 Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Incremental Term B Loans, in each case as applicable, on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such 2017 Refinancing Term B Loans or Incremental Term B Loans, as applicable) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing 2017 Refinancing Term B Lenders and 2018 Increase or Incremental Term B Lenders, collectivelyas applicable) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each 2017 Refinancing Term B Cashless Settlement Repricing Option Lender, each 2017 Refinancing Term B Post-Closing Repricing Option Lender and each Additional 2017 Refinancing Term B Lender, (ii) from each 2018 Increase Incremental Term B Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (iiiii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing 2017 Refinancing Term B Loan Consent, if applicable) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing 2017 Refinancing Term B Loan Consent, if applicable).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2017 Refinancing Term B Loans, all accrued and unpaid interest on their Existing Term B Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2017 Refinancing Arranger and the Co-Manager, on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).in
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Conditions of Lending. The obligations obligation of the 2018 Repricing Term Lenders each Lender to make 2018 Repriced fund its Term Loans and of the 2018 Increase Lenders hereunder is subject to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver made in accordance compliance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively10.01) of the following conditions (precedent on the date of such satisfaction or waiver, the “Effective Closing Date”)::
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgent’s receipt of the following, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) properly executed by a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making Responsible Officer of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such signing Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since each dated the Closing Date,
Date (ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andor, in the case of certificates of governmental officials, a recent date before the Borrower, the borrowings hereunder, Closing Date) and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to and the Arrangers:
(i) executed counterparts of this Agreement and the Guaranty, by each Loan Party thereto;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement, duly executed by each Loan Party, together with all financing statements in appropriate form for filing necessary in order to perfect the Liens created under the Security Agreement that name any Loan Party as debtor;
(iv) a pledge agreement, in form reasonably satisfactory to the Administrative Agent and its counsel (the “Pledge Agreement”), duly executed by Parent, Borrower and any Loan Parties owning Equity Interests in any Restricted Subsidiaries, together with certificates, if any, representing the Equity Interests pledged thereby that constitute certificated securities (within the meaning of Section 8-102(a)(4) of the UCC) accompanied by undated stock powers executed in blank;
(v) such resolutions or organizational other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent shall may reasonably requestrequest evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably request to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organization;
(vii) a favorable opinion of McAfee & Xxxx, Oklahoma counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a favorable opinion of Xxxxx Xxxxx L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to Administrative Agent;
(ix) audited financial statements of the Parent and its Consolidated Subsidiaries for the fiscal year ending December 31, 2011, 2012 and 2013;
(x) forecasts prepared by management of the Parent, of consolidated balance sheets and statements of income or operations and cash flows of the Parent and its Subsidiaries for the fiscal years ending December 31, 2014 through 2018;
(xi) a certificate signed by a Responsible Officer of the Parent certifying (A) that the conditions specified in Section 4.01(e), (f) and (g) have been satisfied; (B) that there has been no event or circumstance since December 31, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) as to the accuracy of the representation contained in Section 5.18; and (D) that borrowers under the ABL Credit Agreement have availability thereunder of $100,000,000 or more;
(xii) results of Lien searches in respect of the Loan Parties reasonably requested by the Administrative Agent showing no liens other than Permitted Liens and other Liens approved by the Administrative Agent;
(xiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; and
(xiv) evidence (in the form of “when issued” trading) that the Equity Interests in Parent are publicly traded on a nationally recognized stock exchange.
(eb) The Administrative Agent’s receive of evidence, in form and substance reasonably satisfactory to the Administrative Agent, that substantially simultaneously with the funding of the Term Loans hereunder, the Existing Credit Agreement (excluding, for the avoidance of doubt, the Existing Letters of Credit) is being terminated and paid in full and the Liens existing in favor of administrative agent thereunder in and to the assets of the Loan Parties are being released, including UCC-3 termination statements in appropriate form for filing.
(c) (i) All fees required to be paid to the Administrative Agent and expenses payable under the engagement letter Arrangers on or otherwise in connection with before the transactions contemplated hereunder Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent and the Arrangers (directly to such counsel if requested by the Administrative Agent) to the extent invoiced two Business Days prior to the Effective Date 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, to the extent included in such invoice (which amounts may be offset against provided that such estimate shall not thereafter preclude a final settling of accounts between the proceeds Borrower and the Administrative Agent).
(i) Each Loan Party shall have received all governmental, partner and third party consents and approvals necessary for the consummation of the Loans made hereunder)transactions contemplated by this Agreement, which consents and approvals are in full force and effect, (ii) no order, decree, judgment, ruling or injunction exists which restrains the consummation of the transactions contemplated by this Agreement, and (iii) there is no pending, or to the knowledge of the Borrower or any other Loan Party, threatened, action, suit, investigation or proceeding that could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation representations and other information warranties of the type set forth Borrower and each other Loan Party contained in Section 3.23(a) Article V or any other Loan Document shall be true and correct on and as of the Existing Credit AgreementClosing Date, except to the extent that such information has been requested not less than five (5) Business Days prior representations and warranties specifically refer to the Effective Datean earlier date, in which case they shall be true and correct as of such earlier date.
(g) The Borrower No Default shall have delivered to exist, or would result from the Administrative Agent a certificate from a Responsible Officer funding of the Borrower dated as Term Loans or from the application of the Effective proceeds thereof on the Closing Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given Loan Notice in accordance with the requirements hereof. Without limiting the generality of the provisions of the last paragraph of Section 2.03)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 notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Chesapeake Oilfield Operating LLC)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders Lender to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are a Loan is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) fulfillment of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) 3.1. The Administrative Agent (or its counsel) following documents shall have received (i) from each Cashless Settlement Repricing been duly authorized, executed and delivered by the Borrower to the Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) shall be in form and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably substance satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower Lender and its counsel and shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are be in full force and effect on the Effective Date,date of the Loan. Prior to the first Loan:
(va) certifying an executed Loan Agreement, and all executed documents, certificates and instruments contemplated by this Loan Agreement, including but not limited to the Security Agreement;
(b) a certified copy of the resolution of the Board of Directors of Borrower, certified by the Secretary or a responsible officer thereof, duly authorizing execution, delivery and performance of this Loan Agreement and the Note contemplated hereby;
(c) a certificate of recent date from the Secretary of State of the state of incorporation of Borrower as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.its good standing;
(d) The Administrative Agent shall have receivedan incumbency certificate of Borrower dated as of the date of funding, as to (i) the person or persons authorized to execute and deliver this Loan Agreement, the Note, the Security Agreement, and any other documents to be executed on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise them in connection with the transactions contemplated hereunder shall have been paid on hereby and (ii) the signature of each person or prior to persons;
(e) the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).executed Note;
(f) The Administrative Agent documentary evidence satisfactory to Lender that any and all liens or other security interests on any of Borrower's tangible or intangible property, including but not limited to accounts, computer hardware and software, copyrights, equipment, inventory, licenses, patents, trade secrets, trademarks, general intangibles, chattel paper or other property, and all proceeds thereof, shall have received on been released or prior otherwise subordinated to three Lender's security interests contemplated herein, except as otherwise provided by that certain agreement by and among ProFutures Bridge Capital Fund, L.P., a Delaware limited partnership (3) Business Days prior to the Effective Date all documentation "ProFutures"), Lender and other information Borrower, dated as of the type set forth in Section 3.23(a) April 28, 1998 and attached hereto as Exhibit D, and except as provided by that certain agreement by and among Uro-Tech, Ltd., Lender and Borrower, dated as of the Existing Credit AgreementApril 28, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.1998 and attached hereto as Exhibit E; and
(g) The Borrower shall have delivered to an expense plan and budget, including an acceptable cash control system for managing expenditures within the Administrative Agent a certificate from a Responsible Officer of the Borrower dated plan and budget, ("Expense Plan"), attached hereto as of the Effective Date, to the effect set forth in Sections 3(bSchedule 3.1(g) and 3(d) hereof.; and
(h) At least three (3) Business Days prior documentary evidence satisfactory to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requestsany Letter of Intent or contract arrangements of whatever nature between Borrower and CTI PET Systems, a certification regarding beneficial ownership as required by Inc. have expired or otherwise been terminated, and that there are no obligations of whatever nature in effect between Borrower and CTI PET Systems, Inc. For each Loan (including the Beneficial Ownership Regulation in relation to such Borrower.first):
(i) The Administrative Agent an officer's certificate in the form of Exhibit B which shall include the written request from Borrower setting forth the requested amount of the Loan and the proposed date of borrowing;
(j) for each Loan after the first Loan, documentary evidence satisfactory to Lender, including but not limited to Exhibit B, that Borrower is adhering strictly to the Expense Plan; and
(k) such other documents and evidence with respect to Borrower as Lender may reasonably request.
3.2. On the date of each borrowing pursuant to Section 2.1 above, (i) no Default or event that with the giving of notice or lapse of time or both would constitute a Default hereunder has occurred and is continuing or would result from the performance of this Loan Agreement, (ii) no material adverse change shall have received occurred since the date of this Loan Agreement in the financial condition or operations of the Borrower, and (iii) there shall be no juridical proceeding or regulatory action instituted by or against the Borrower, or, to the best of Borrower's knowledge, any threatened proceeding or action which may materially adversely affect the business, property, operation, or financial condition of the Borrower. By acceptance of a Borrowing Request Loan, Borrower represents as required by of such Loan date, that each of the foregoing items is true. The foregoing notwithstanding, Lender acknowledges that it has been advised of the status of Borrower's lease for space located at 1304 Langham Creek Drive, #310, Hoxxxxx, Xxxxx 00000, as set forth on Schedule 4.5 herein, and that such status will not be deemed a breach of this Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03)3.2.
Appears in 1 contract
Samples: Loan Agreement (Imatron Inc)
Conditions of Lending. The obligations of the 2018 Repricing 2016 Refinancing Term B Lenders to make 2018 Repriced 2016 Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such 2016 Refinancing Term B Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing 2016 Refinancing Term Lenders and 2018 Increase B Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each 2016 Refinancing Term B Cashless Settlement Repricing Option Lender, each 2016 Refinancing Term B Post-Closing Repricing Lender, each 2018 Increase Option Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) each Additional 2016 Refinancing Term B Lender and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing 2016 Refinancing Term B Loan Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing 2016 Refinancing Term B Loan Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2016 Refinancing Term B Loans, the prepayment premium payable pursuant to Section 2.12(d) of the Existing Credit Agreement and all accrued and unpaid interest on their Existing Term B Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2016 Refinancing Arranger, the Co-Manager and any 2016 Refinancing Term B Lender, on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) 5 Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and hereunder are subject to the satisfaction of the 2018 Increase Lenders to make Additional Term Loansfollowing conditions, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders form and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably substance satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).and the Required Lenders:
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(ca) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective DateBorrowing Request as required by Section 2.03.
(b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the A&R Effective Date, except to the extent such representations and warranties expressly relate to a different date.
(c) The Borrowers and each other Credit Party shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, and at the time of and immediately after such Borrowing, no Default or Event of Default hereunder, under the Original Second Lien Credit Agreement and/or any other Loan Document shall have occurred and be continuing.
(d) The Administrative Agent and the Collateral Agent shall have received, on behalf of themselves and the Lenders, a favorable written opinion of Xxxxxxxxx Xxxxxxxx LLP, counsel for the Borrowers, substantially to the effect set forth in Exhibit E, which opinion shall (i) either be dated the A&R Effective Date, (xii) attaching be addressed to the Lenders, the Administrative Agent and the Collateral Agent, and (iii) cover such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request. The Borrowers hereby instruct such counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents, and the existence of Liens on the Collateral for the benefit of the Secured Parties shall be satisfactory to the Lenders and the Administrative Agent.
(f) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan each Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction State of its organization or (y) with respect to any Loan Party other than the Borrower or Holdingsorganization, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan each Credit Party as of a recent date date, from such Secretary of State State; (ii) a certificate of the Secretary or other similar official),
Assistant Secretary of each Credit Party dated the A&R Effective Date and certifying (iiiA) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Credit Party as in effect on the A&R Effective Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or below, (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Credit Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party Person is a party and, in the case of the BorrowerBorrowers, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate or articles of incorporation of such Credit Party have not been amended since the date of the last amendment thereto shown on the Effective Date,
certificate of good standing furnished pursuant to clause (vi) certifying above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Credit Party, and
; (viiii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and clause (ii) Xxxxxxx Xxxxxx L.L.P., in each case, above; and (Aiv) dated such other documents as the Effective Date, (B) addressed to Lenders or the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request certificate, dated the A&R Effective Date and signed by a Financial Officer of the Borrowers confirming compliance with the conditions precedent set forth in paragraphs (b), (c), (l), (m) and (p) of this Article.
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the A&R 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 hereunder or under any other Loan Document, including without limitation, the fees, costs and expenses of Xxxxxxxx & Xxxxx LLP, as counsel for certain of the Lenders, and Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, as counsel for the Agents.
(i) The Collateral Documents shall have been duly executed by each Person that is to be a party thereto and shall be in full force and effect on the A&R Effective Date. The Collateral Agent on behalf of the Secured Parties shall continue to have on the A&R Effective Date the security interest in the Collateral created on the Original Closing Date of the type and priority described in Section 3.25 hereof.
(j) The Collateral Agent shall have received (i) the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Credit Parties in the States (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.07 or have been or will be contemporaneously released or terminated and (ii) bailee letters in favor of the Collateral Agent with respect to material leased properties of the Credit Parties..
(k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 2.03 5.04 and the applicable provisions of the Collateral Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent, and non-renewal, cancellation and amendment riders providing thirty days’ advance notice to the Collateral Agent.
(or a Borrowing Request l) The Administrative Agent shall be satisfied that the Leverage Ratio shall be no more than 3.00 to 1.00 as of the A&R Effective Date, calculated after giving pro forma effect to the Transactions to occur on the A&R Effective Date.
(m) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Credit Parties shall have been deemed given outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement, (b) Indebtedness outstanding under the First Lien Credit Agreement, (c) the High Yield Notes and (d) Indebtedness set forth on Schedule 6.03.
(n) The Lenders shall have received the financial statements, certificates and opinion referred to in accordance Section 3.04, which financial statements shall not be materially inconsistent with the last paragraph financial statements or forecasts previously provided to the Lenders and otherwise satisfactory in form and substance to the Administrative Agent.
(o) The Lenders shall have received financial projections of Holdings and its Subsidiaries for the years 2009 through 2012, in form and substance satisfactory to the Administrative Agent.
(p) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or, (to the knowledge of any of the Credit Parties) threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(q) The Lenders shall be satisfied that the Transactions will not violate (i) any provision of law, statute, rule or regulation applicable to the Credit Parties or the articles of organization or other constitutive documents of the Credit Parties or any order of any governmental authority or (ii) any provision of any indenture or other material instrument or agreement to which any Credit Party is a party or by which any of them or any of their property is bound.
(r) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
(s) The Administrative Agent shall be satisfied that the Lenders under the Original Second Lien Credit Agreement have been, or will be on the A&R Effective Date, paid in full all amounts required to be paid to them by Borrowers pursuant to Section 2.032.01(d).
Appears in 1 contract
Samples: Second Lien Credit Agreement (Thermadyne Holdings Corp /De)
Conditions of Lending. The obligations obligation of the 2018 Repricing Term Lenders each Lender to make 2018 Repriced fund its Term Loans and of the 2018 Increase Lenders hereunder is subject to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver made in accordance compliance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively10.01) of the following conditions (precedent on the date of such satisfaction or waiver, the “Effective Closing Date”)::
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgent’s receipt of the following, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) properly executed by a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making Responsible Officer of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such signing Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since each dated the Closing Date,
Date (ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andor, in the case of certificates of governmental officials, a recent date before the Borrower, the borrowings hereunder, Closing Date) and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to and the Arrangers:
(i) executed counterparts of this Agreement and the Guaranty, by each Loan Party party thereto;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement, duly executed by each Loan Party, together with all financing statements in appropriate form for filing necessary in order to perfect the Liens created under the Security Agreement that name any Loan Party as debtor;
(iv) a pledge agreement, in form reasonably satisfactory to the Administrative Agent and its counsel (the “Pledge Agreement”), duly executed by Parent, Borrower and any Loan Parties owning Equity Interests in any Restricted Subsidiaries, together with certificates, if any, representing the Equity Interests pledged thereby that constitute certificated securities (within the meaning of Section 8-102(a)(4) of the UCC) accompanied by undated stock powers executed in blank;
(v) such resolutions or organizational other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent shall may reasonably requestrequest evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably request to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organization;
(vii) a favorable opinion of McAfee & Xxxx, Oklahoma counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a favorable opinion of Xxxxx Xxxxx L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to Administrative Agent;
(ix) audited financial statements of the Parent and its Consolidated Subsidiaries for the fiscal year ending December 31, 2011, 2012 and 2013;
(x) forecasts prepared by management of the Parent, of consolidated balance sheets and statements of income or operations and cash flows of the Parent and its Subsidiaries for the fiscal years ending December 31, 2014 through 2016;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.01(e), (f) and (g) have been satisfied; (B) that there has been no event or circumstance since December 31, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) as to the accuracy of the representation contained in Section 5.18; and (D) that borrowers under the ABL Credit Agreement have availability thereunder of $100,000,000 or more;
(xii) results of Lien searches in respect of the Loan Parties reasonably requested by the Administrative Agent showing no liens other than Permitted Liens and other Liens approved by the Administrative Agent; and
(xiii) evidence (in the form of “when issued” trading) that the Equity Interests in Parent are publicly traded on a nationally recognized stock exchange.
(eb) The Administrative Agent’s receive of evidence, in form and substance reasonably satisfactory to the Administrative Agent, that substantially simultaneously with the funding of the Term Loans hereunder, the Existing Credit Agreement (excluding, for the avoidance of doubt, the Existing Letters of Credit) is being terminated and paid in full and the Liens existing in favor of administrative agent thereunder in and to the assets of the Loan Parties are being released, including UCC-3 termination statements in appropriate form for filing.
(c) (i) All fees required to be paid to the Administrative Agent and expenses payable under the engagement letter Arrangers on or otherwise in connection with before the transactions contemplated hereunder Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent and the Arrangers (directly to such counsel if requested by the Administrative Agent) to the extent invoiced two Business Days prior to the Effective Date 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, to the extent included in such invoice (which amounts may be offset against provided that such estimate shall not thereafter preclude a final settling of accounts between the proceeds Borrower and the Administrative Agent).
(i) Each Loan Party shall have received all governmental, partner and third party consents and approvals necessary for the consummation of the Loans made hereunder)transactions contemplated by this Agreement, which consents and approvals are in full force and effect, (ii) no order, decree, judgment, ruling or injunction exists which restrains the consummation of the transactions contemplated by this Agreement, and (iii) there is no pending, or to the knowledge of the Borrower or any other Loan Party, threatened, action, suit, investigation or proceeding that could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation representations and other information warranties of the type set forth Borrower and each other Loan Party contained in Section 3.23(a) Article V or any other Loan Document shall be true and correct on and as of the Existing Credit AgreementClosing Date, except to the extent that such information has been requested not less than five (5) Business Days prior representations and warranties specifically refer to the Effective Datean earlier date, in which case they shall be true and correct as of such earlier date.
(g) The Borrower No Default shall have delivered to exist, or would result from the Administrative Agent a certificate from a Responsible Officer funding of the Borrower dated as Term Loans or from the application of the Effective proceeds thereof on the Closing Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given Loan Notice in accordance with the requirements hereof. Without limiting the generality of the provisions of the last paragraph of Section 2.03)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 notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Seventy Seven Energy Inc.)
Conditions of Lending. The obligations obligation of AGENT and the 2018 Repricing Term Lenders LENDERS to make 2018 Repriced Term Loans and of the 2018 Increase Lenders lend hereunder is subject to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (precedent:
5.1 On the date hereof, all legal matters incident to this Agreement shall be reasonably satisfactory to counsel for AGENT.
5.2 On the date hereof, BORROWER shall be in compliance with all the terms and provisions set forth herein and no Event of Default specified in Article VIII hereof, nor any event which upon notice or lapse of time or both would constitute such satisfaction or waiveran Event of Default, shall have occurred and be continuing.
5.3 On the “Effective Date”):date hereof, AGENT shall have received executed originals of:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).Agreement;
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.Revolving Notes;
(c) The Administrative Agent shall UCC-1 Financing Statements and, if necessary to discharge any non-Permitted Liens against BORROWER or SELLER, UCC-3 Financing Statements (Terminations);
(d) the Certification as to Liens;
(e) the Certification Responsive to the Loan Agreement;
(f) the Guaranty;
(g) the Certification Responsive to the Guaranty;
(h) evidence of insurance coverage on the Inventory, and Equipment in amounts and on terms reasonably satisfactory to AGENT, together with endorsements showing AGENT as co-insured or loss payee, as its interests may appear wherever appropriate, together with endorsements showing AGENT to have received a certificate of the Secretary at least 30 days' notice prior to insurance cancellation or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.non-renewal;
(i) either legal opinion of counsel for BORROWER and for GUARANTOR;
(xj) attaching a the Subordination Agreement with copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, subordinated note attached; and
(vik) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan PartyLandlord's Consents.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Loan Agreement (American Drug Co)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent obligation of Lender to make the Initial Disbursement is subject to the conditions precedent that:
(i) an order of the Bankruptcy Court shall have been entered confirming the Plan of Reorganization of Triangle Petroleum Corporation filed at Docket No. 8 in Case No. 11025-MFW in the United States Bankruptcy Court of Delaware, as such Plan of Reorganization may be amended with the consent of Lender (the “Plan”), which order of court shall be in full force and effect and shall not have been reversed, modified, amended, subject to pending appeal, stayed or its counselvacated, and the Effective Date (as defined in the Plan) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and occurred;
(ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either Lender shall have received:
(xA) a counterpart of this Agreement signed on behalf and the Pledge and Security Agreement duly executed by Borrower;
(B) the Guaranty and Pledge Agreement duly executed by Triangle Real Estate Properties, LLC (“Real Estate”) and Triangle Caliber Holdings, LLC (“Caliber”); Section 4 hereof);
(C) the Borrowing Request (delivered in accordance with (D) a resolution certified by Borrower’s Secretary or Assistant Secretary authorizing the transactions contemplated under the Term Loan Documents, including an incumbency certificate of Borrower’s Secretary or Assistant Secretary setting forth the names, titles and true signatures of Borrower’s officers authorized to sign the Term Loan Documents to which it is party and attaching copies of Borrower’s articles of incorporation and by-laws;
(E) for each of Real Estate and Caliber, a resolution certified by the Secretary or Assistant Secretary authorizing the transactions contemplated under the Term Loan Documents, including an incumbency certificate of each such Secretary or Assistant Secretary setting forth the names, titles and true signatures of each of their officers authorized to sign the Term Loan Documents to which it is party and attaching, in each case, copies of its articles of formation and operating agreement;
(or F) [reserved];
(G) an opinion of counsel to Borrower substantially in the form of Exhibit B hereto;
(H) the results of a Repricing Consent) or (y) written evidence recent lien search in each of the jurisdictions of organization of the Borrower, Real Estate and Caliber are located, and such search shall be reasonably satisfactory acceptable to the Administrative Agent Lender;
(I) good standing certificate for each of Borrower, Real Estate and Caliber from its jurisdiction of organization; and
(J) payment of any fees and expenses which may include delivery be netted from the proceeds of a signed signature page the Term Loans;
(iii) (A) the representations and warranties of this Agreement by facsimile Borrower set forth herein shall be true and correct on and as of the Closing Date; and (B) after giving effect to the Closing Date Transactions, no default or other means Event of electronic transmission (e.g., “pdf”)) that such party Default under the Term Loan Documents has signed a counterpart of this Agreement (or a Repricing Consent)occurred and is continuing.
(b) The obligation of Lender to make a Disbursement of Term Loans other than the Initial Disbursement to Borrower shall have paid is subject to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.conditions precedent that:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request Request; and
(ii) (A) the representations and warranties of Borrower set forth herein shall be true and correct on and as required by Section 2.03 of the date of the making of such Disbursement; and (B) at the time of the request for such Disbursement, no default or a Borrowing Request shall have been deemed given in accordance with Event of Default under the last paragraph of Section 2.03)Term Loan Documents has occurred and is continuing.
Appears in 1 contract
Samples: Exit Facility Credit Agreement
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term the Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective DateBorrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the date of the making of such Loans 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.
(c) At the time of and immediately after the making of such Loans, no Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) either Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, substantially to the effect set forth in Exhibit H-1, and (xii) attaching each local counsel listed on Schedule 4.01, substantially to the effect set forth in Exhibit H-2, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders and (C) covering such matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests each of its counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such each Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction State of its organization or (y) with respect to any Loan Party other than the Borrower or HoldingsDelaware, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such each Loan Party as of a recent date date, from such Secretary of State State; (ii) a certificate of the Secretary or other similar official),
Assistant Secretary of each Loan Party dated the Closing Date and certifying (iiiA) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) bylaws of such Loan Party as in effect on the Effective Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or below, (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate of incorporation of such Loan Party have not been amended since the date of the last amendment thereto shown on the Effective Date,
certificate of good standing furnished pursuant to clause (vi) certifying above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
; (viiii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and clause (ii) Xxxxxxx Xxxxxx L.L.P., in each case, above; and (Aiv) dated such other documents as the Effective Date, (B) addressed to Lenders or the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Article IV.
(h) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(i) The Security Documents shall have been duly executed by the Borrower, each Loan Party that is to be a party thereto and, in the case of the Pledge Agreement, Parent, and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(j) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such persons, in which the chief executive office of each such person is located and in the other jurisdictions in which such persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 2.03 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(or a Borrowing Request l) The Redemption shall have been deemed given been, or substantially simultaneously with the funding of Loans on the Closing Date shall be, consummated in accordance with the last paragraph Redemption Agreement and applicable law, without giving effect to any modification or waiver that is materially adverse to the interests of the Lenders of any terms or conditions of the Redemption Agreement unless otherwise approved by the Required Lenders. The Administrative Agent shall have received copies of the Redemption Agreement and all certificates, opinions and other documents delivered thereunder, certified by a Financial Officer as being complete and correct.
(m) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement and the First Lien Credit Agreement and (b) Indebtedness set forth on Schedule 6.01.
(n) The Lenders shall have received the financial statements and opinion referred to in Section 2.03)3.05.
(o) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower certifying that the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent.
(p) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(q) The Lenders shall have received, at least five days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Weight Watchers International Inc)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelywaiver) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Secretary Borrowing as required by Section 2.03 (or Assistant Secretary or similar officer of each Loan Party dated the Effective Datesuch notice shall have been deemed given in accordance with Section 2.03).
(b) Collateral Agent shall have received endorsements naming Collateral Agent, for the benefit of the Secured Parties, (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent on fire and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) extended coverage policies maintained with respect to any Loan Party other than Collateral as an additional insured or loss payee on behalf of the Borrower or HoldingsSecured Parties, certifying there have been no changes to the certificate or articles of incorporationas applicable, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate on commercial general liability policies as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),an additional insured.
(iiic) either (x) certifying that attached thereto is a true At the time of and complete copy immediately after the making of the by-laws (Loans, no Event of Default or partnership agreement, limited liability company agreement or other equivalent constituent Default shall have occurred and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Partybe continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the in a form reasonably satisfactory to it, a customary written opinions opinion of (i) XxxxXxxxxxxx & Xxxxx LLP, Weisscounsel for the Borrower and the Subsidiaries, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P.each special and local counsel to the Borrower and the Subsidiaries as the Administrative Agent may reasonably request, in each case, case (A) dated the Effective Closing Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement the Loan Documents and the Transactions as the Administrative Agent shall reasonably requestrequest and which are customary for transactions of the type contemplated herein, and the Borrower and the Subsidiaries hereby request such counsel to deliver such opinions.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received (i) a copy of the certificate or articles of incorporation or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws, operating agreement or similar document of such Loan Party as in effect on or the Closing Date and at all times since a date prior to the Effective Date (which amounts may be offset against the proceeds date of the Loans made resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors, managers or members, as applicable, of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party, in the case of the Borrower, the borrowings hereunder), in the case of each Loan Party, the granting of the Liens contemplated to be granted by it under the Security Documents and, in the case of each Subsidiary Guarantor, the Guaranteeing of the Obligations as contemplated by the Guarantee and Collateral Agreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of such Loan Party have not been amended since the date of the last amendment provided to the Administrative Agent and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above.
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to a certificate, dated the Effective Closing Date all documentation and other information signed by a Financial Officer of the type Borrower, confirming compliance with the conditions precedent set forth in Section 3.23(aparagraphs (c) and (q) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Datethis Article IV.
(g) The Borrower Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of the Borrower, (ii) the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each of the Borrower and each Subsidiary Guarantor, (iii) the Fee Letter and Engagement Letter, duly executed and delivered by an authorized officer of the Borrower, (iv) if requested by any Lender pursuant to Section 2.04, a promissory note or notes conforming to the requirements of such Section and executed and delivered by a duly authorized officer of the Borrower, and (v) the material Closing Date Subordinated Debt Documents and the Intercreditor and Subordination Agreement, in each case in a form reasonably acceptable to the Administrative Agent a certificate from a Responsible Officer of and duly executed and delivered by the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereofparties thereto.
(h) At least three The Collateral Agent, for the ratable benefit of the Secured Parties, shall have been granted on the Closing Date first priority perfected Liens on the Collateral (3) Business Days prior subject, in the case of all Collateral other than Pledged Securities, to Permitted Liens). The Pledged Collateral shall have been duly and validly pledged under the Guarantee and Collateral Agreement to the Effective DateCollateral Agent, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (for the “Beneficial Ownership Regulation”) ratable benefit of the Secured Parties, and certificates representing such Pledged Collateral, accompanied by instruments of transfer and stock powers endorsed in blank, shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by be in the Beneficial Ownership Regulation in relation to such Borroweractual possession of the Collateral Agent.
(i) The Collateral Agent shall have received a duly executed Perfection Certificate dated on or prior to the Closing Date. The Collateral Agent shall have received the results of a recent Lien and judgment search in the jurisdiction of organization of each of the Borrower and those of the Subsidiaries that shall be Subsidiary Guarantors, and such search shall reveal no Liens on any of the assets of the Borrower or any of such Subsidiaries, except Permitted Liens and except for Liens to be discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Collateral Agent.
(j) All conditions precedent to the consummation of the Retail Sale under the Retail Sale Purchase Agreement shall have been satisfied substantially contemporaneously with the closing under this Agreement (unless otherwise waived with the approval of the Administrative Agent) and the Retail Sale shall have been consummated substantially contemporaneously with the closing under this Agreement in accordance in all material respects with the terms of the Retail Sale Purchase Agreement; and no material changes shall have been made to the Retail Sale Purchase Agreement disclosed to the Agent under the Commitment Letter without the prior written consent of the Administrative Agent (it being agreed that any decreases in the purchase price for the Retail Sale, deferred consideration for the Retail Sale or escrow amounts under the Retail Sale Purchase Agreement, changes to the mechanics of release such deferred consideration or escrow amounts and material changes to the terms of the transition services agreement and distribution agreement executed in connection with the Retail Sale Purchase Agreement shall be deemed to be material under this clause (j)).
(k) The Borrower shall have substantially contemporaneously repaid all amounts outstanding under the Existing Credit Facility. The Administrative Agent shall have received reasonably satisfactory evidence that (i) the Existing Credit Facility shall have been terminated (or substantially contemporaneously with the occurrence of the Closing Date shall be terminated), all amounts then due and payable or to become due and payable (other than obligations not yet having been requested) thereunder shall have been paid in full and all commitments and reimbursement obligations thereunder shall have been terminated and (ii) reasonably satisfactory arrangements shall have been made for the termination of all Liens granted in connection therewith, in each case on terms and conditions satisfactory to the Administrative Agent. The Borrower shall substantially contemporaneously received $10,000,000 in gross cash proceeds from its incurrence of the Closing Date Subordinated Debt.
(l) The Administrative Agent shall have received (i) the financial statements described in Section 3.05 and (ii) U.S. GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for (A) the fiscal quarter ended June 30, 2013 and (B) monthly and year to date financial statements for July 31, 2013 and, if the Closing Date occurs after September 30, 2013, August 31, 2013, all in form reasonably satisfactory to the Administrative Agent (it being agreed that such financial statements shall be deemed reasonably satisfactory to the Administrative Agent if provided in the same format and with the same detail as the historical financial statements delivered to the lenders under the Existing Credit Facility).
(m) The Administrative Agent shall have received projections of the Borrower and its Subsidiaries for the years 2013 through 2016 (the “Projections”).
(n) The Administrative Agent shall have received a Borrowing Request as certificate from the chief financial officer of the Borrower certifying that the Loan Parties (together with their Subsidiaries), after giving effect to the Transactions and the other transactions contemplated hereby, are Solvent.
(o) All material governmental, regulatory and third party consents and approvals with respect to the Transactions and the other transactions contemplated hereby to the extent required by Section 2.03 (or a Borrowing Request shall have been deemed given obtained, all applicable appeal periods shall have expired and there shall be no litigation, governmental, administrative or judicial action, actual or threatened in accordance with writing, that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the last paragraph of Section 2.03)Transactions or the other transactions contemplated hereby.
(p) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act.
(q) The representations and warranties set forth in the Loan Documents shall be true and correct in all material respects.
Appears in 1 contract
Samples: Credit Agreement (Affirmative Insurance Holdings Inc)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelywaiver) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Secretary Borrowing as required by Section 2.03 (or Assistant Secretary or similar officer of each Loan Party dated the Effective Datesuch notice shall have been deemed given in accordance with Section 2.03).
(b) Collateral Agent shall have received endorsements naming Collateral Agent, for the benefit of the Secured Parties, (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent on fire and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) extended coverage policies maintained with respect to any Loan Party other than Collateral as an additional insured or loss payee on behalf of the Borrower or HoldingsSecured Parties, certifying there have been no changes to the certificate or articles of incorporationas applicable, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate on commercial general liability policies as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),an additional insured.
(iiic) either (x) certifying that attached thereto is a true At the time of and complete copy immediately after the making of the by-laws (Loans, no Event of Default or partnership agreement, limited liability company agreement or other equivalent constituent Default shall have occurred and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Partybe continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the in a form reasonably satisfactory to it, a customary written opinions opinion of (i) XxxxXxxxxxxx & Xxxxx LLP, Weisscounsel for the Borrower and the Subsidiaries, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P.each special and local counsel to the Borrower and the Subsidiaries as the Administrative Agent may reasonably request, in each case, case (A) dated the Effective Closing Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement the Loan Documents and the Transactions as the Administrative Agent shall reasonably requestrequest and which are customary for transactions of the type contemplated herein, and the Borrower and the Subsidiaries hereby request such counsel to deliver such opinions.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received (i) a copy of the certificate or articles of incorporation or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws, operating agreement or similar document of such Loan Party as in effect on or the Closing Date and at all times since a date prior to the Effective Date (which amounts may be offset against the proceeds date of the Loans made resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors, managers or members, as applicable, of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party, in the case of the Borrower, the borrowings hereunder), in the case of each Loan Party, the granting of the Liens contemplated to be granted by it under the Security Documents and, in the case of each Subsidiary Guarantor, the Guaranteeing of the Obligations as contemplated by the Guarantee and Collateral Agreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of such Loan Party have not been amended since the date of the last amendment provided to the Administrative Agent and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above.
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to a certificate, dated the Effective Closing Date all documentation and other information signed by a Financial Officer of the type Borrower, confirming compliance with the conditions precedent set forth in Section 3.23(aparagraphs (c) and (q) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Datethis Article IV.
(g) The Borrower Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of the Borrower, (ii) the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each of the Borrower and each Subsidiary Guarantor, (iii) if requested by any Lender pursuant to Section 2.04, a promissory note or notes conforming to the requirements of such Section and executed and delivered by a duly authorized officer of the Borrower, and (iv) the First Lien Loan Documents and the Intercreditor and Subordination Agreement, in each case in a form reasonably acceptable to the Administrative Agent a certificate from a Responsible Officer of and duly executed and delivered by the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereofparties thereto.
(h) At least three The Collateral Agent, for the ratable benefit of the Secured Parties, shall have been granted on the Closing Date second priority perfected Liens on the Collateral (3) Business Days prior subject, in the case of all Collateral other than Pledged Securities, to Permitted Liens). The Pledged Collateral shall have been duly and validly pledged under the Guarantee and Collateral Agreement to the Effective DateCollateral Agent, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (for the “Beneficial Ownership Regulation”) ratable benefit of the Secured Parties, and certificates representing such Pledged Collateral, accompanied by instruments of transfer and stock powers endorsed in blank, shall deliver, be in the actual possession of the collateral agent pursuant to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such BorrowerFirst Lien Loan Documents.
(i) The Collateral Agent shall have received a duly executed Perfection Certificate dated on or prior to the Closing Date. The Collateral Agent shall have received the results of a recent Lien and judgment search in the jurisdiction of organization of each of the Borrower and those of the Subsidiaries that shall be Subsidiary Guarantors, and such search shall reveal no Liens on any of the assets of the Borrower or any of such Subsidiaries, except Permitted Liens and except for Liens to be discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Collateral Agent.
(j) All conditions precedent to the consummation of the Retail Sale under the Retail Sale Purchase Agreement shall have been satisfied substantially contemporaneously with the closing under this Agreement (unless otherwise waived with the approval of the Administrative Agent) and the Retail Sale shall have been consummated substantially contemporaneously with the closing under this Agreement in accordance in all material respects with the terms of the Retail Sale Purchase Agreement; and no material changes shall have been made to the Retail Sale Purchase Agreement disclosed to the Agent under the Commitment Letter without the prior written consent of the Administrative Agent (it being agreed that any decreases in the purchase price for the Retail Sale, deferred consideration for the Retail Sale or escrow amounts under the Retail Sale Purchase Agreement, changes to the mechanics of release such deferred consideration or escrow amounts and material changes to the terms of the transition services agreement and distribution agreement executed in connection with the Retail Sale Purchase Agreement shall be deemed to be material under this clause (j)).
(k) The Borrower shall have substantially contemporaneously repaid all amounts outstanding under the Existing Credit Facility. The Administrative Agent shall have received reasonably satisfactory evidence that (i) the Existing Credit Facility shall have been terminated (or substantially contemporaneously with the occurrence of the Closing Date shall be terminated), all amounts then due and payable or to become due and payable (other than obligations not yet having been requested) thereunder shall have been paid in full and all commitments and reimbursement obligations thereunder shall have been terminated and (ii) reasonably satisfactory arrangements shall have been made for the termination of all Liens granted in connection therewith, in each case on terms and conditions satisfactory to the Administrative Agent. The Borrower shall substantially contemporaneously received $40,000,000 in gross cash proceeds from its incurrence of the First Lien Loans.
(l) The Administrative Agent shall have received (i) the financial statements described in Section 3.05 and (ii) U.S. GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for (A) the fiscal quarter ended June 30, 2013 and (B) monthly and year to date financial statements for July 31, 2013 and, if the Closing Date occurs after September 30, 2013, August 31, 2013, all in form reasonably satisfactory to the Administrative Agent (it being agreed that such financial statements shall be deemed reasonably satisfactory to the Administrative Agent if provided in the same format and with the same detail as the historical financial statements delivered to the lenders under the Existing Credit Facility).
(m) The Administrative Agent shall have received projections of the Borrower and its Subsidiaries for the years 2013 through 2016 (the “Projections”).
(n) The Administrative Agent shall have received a Borrowing Request as certificate from the chief financial officer of the Borrower certifying that the Loan Parties (together with their Subsidiaries), after giving effect to the Transactions and the other transactions contemplated hereby, are Solvent.
(o) All material governmental, regulatory and third party consents and approvals with respect to the Transactions and the other transactions contemplated hereby to the extent required by Section 2.03 (or a Borrowing Request shall have been deemed given obtained, all applicable appeal periods shall have expired and there shall be no litigation, governmental, administrative or judicial action, actual or threatened in accordance with writing, that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the last paragraph Transactions or the other transactions contemplated hereby.
(p) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act.
(q) The representations and warranties set forth in the Loan Documents shall be true and correct in all material respects.
(r) The Administrative Agent shall have the Administrative Agency Fee payable pursuant to Section 2.05.
(s) Each Lender shall have received the Upfront Fee, which shall be paid by capitalizing such Upfront Fee and adding it to the principal amount of Section 2.03)such Lender’s Loans on the Closing Date.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Affirmative Insurance Holdings Inc)
Conditions of Lending. ISSUANCE, AMENDMENT, EXTENSION ------------------------------------------------------ AND RENEWAL OF LETTER OF CREDIT ------------------------------- SECTION
3.01. Conditions Precedent to the -------------------------- Amendment and Restatement and to the Corresponding -------------------------------------------------- Borrowing. The obligations effectiveness of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans amendment and --------- restatement of the 2018 Increase Lenders Original Credit Agreement pursuant to make Additional Term Loansthe terms hereof, in each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to any Triple-A Loan on any Contract Grant Date, and the satisfaction (or waiver in accordance with Section 9.09 obligation of the Existing L/C Bank to issue the Letter of Credit Agreement or by a majority is subject to satisfaction of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) each of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each Each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to Collateral Agent, Triple-A and the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent L/C Bank shall have received a certificate all of the Secretary or Assistant Secretary or similar officer documents, covenants, authorizations, agreements and instruments described on the List of each Loan Party dated Closing Documents attached as Exhibit C hereto (including, without --------- limitation, the Contract Schedule, giving effect to the Grant of Contracts contemplated to correspond with the Effective Restatement Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder1996 Interest Rate Hedge, and that such resolutions have not been modifiedthe 1996 Interest Rate Hedge Assignment), rescinded or amended each in form and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed substance satisfactory to the Administrative Agent and the Lenders on L/C Bank, and in each case where applicable (x) duly executed by each of the Effective Date parties thereto, (y) to the extent required in Exhibit C, duly filed with the appropriate --------- filing officer or other governmental authority of the listed jurisdiction, as evidenced by an appropriate acknowledgment evidencing that such filing is of record, and (Cz) in form and substance dated and/or certified (as applicable) as of a date reasonably satisfactory acceptable to the Administrative Agent covering such matters relating to this Agreement as and the Administrative Agent shall reasonably request.L/C Bank;
(eb) All fees and expenses due and owing under the Facility Documents (including, without limitation, all fees and expenses payable under the engagement letter or otherwise Fee Letter and the L/C Fee Letter entered into in connection with the transactions contemplated hereunder this Credit Agreement) shall have been paid paid;
(c) Each of the Collateral Agent, the Administrative Agent, Triple-A, the L/C Bank and the Surety shall have received such other approvals, documents or opinions as it may reasonably request;
(d) In connection with the Triple-A Loan and the Grant of Contracts contemplated to correspond with the Effective Restatement Date, and the issuance (if any) of the Letter of Credit on or prior the Effective Restatement Date, each of the conditions precedent set forth in Section 3.02 have been ------------ satisfied;
(e) The Certificate of Incorporation of the Borrower shall have been amended pursuant to an amendment in form and substance acceptable to the Effective Date (which amounts may be offset against Collateral Agent and the proceeds of the Loans made hereunder).L/C Bank;
(f) The Each of S&P and Xxxxx'x shall have confirmed to the Administrative Agent shall have received on or prior to three (3) Business Days prior that the Triple-A Loans constitute an "investment grade" risk, without giving effect to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.Surety Bonds;
(g) The Borrower CapMAC's Underwriting Committee shall have delivered to approved the Administrative Agent a certificate from a Responsible Officer of transactions contemplated by the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.Facility Documents; and
(h) At least three (3) Business Days prior to FNBB's Credit Committee shall have approved the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required transactions contemplated by the Beneficial Ownership Regulation in relation to such BorrowerFacility Documents.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing May 2024 Incremental Term B-1 Lenders to make 2018 Repriced the May 2024 Incremental Term B-1 Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase May 2024 Incremental Term B-1 Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower Borrowers and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer Responsible Officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Fifteenth Incremental Assumption and Amendment Agreement Effective Date,;
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Fifteenth Incremental Assumption and Amendment Agreement Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the executive committee of the board of managers or Board of Directors (or equivalent governing body) ), as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the BorrowerBorrowers, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,;
(v) either (x) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan PartyParty or (y) with respect to any Loan Party other than the Borrowers or Holdings, certifying that there have been no changes to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the Fifteenth Incremental Assumption and Amendment Agreement Effective Date; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(dc) The Administrative Agent shall have received, on behalf of itself and the May 2024 Incremental Term B-1 Lenders, the a written opinions opinion of (i) Xxxx, WeissXxxxx, RifkindXxxxxxx, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the May 2024 Incremental Term B-1 Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ed) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the May 2024 Incremental Term B-1 Loans made hereunder).
(fe) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date[Reserved].
(gf) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the Effective Date, to the effect set forth in Sections 3(b4(b) and 3(d4(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions of Lending. The obligations of the 2018 Repricing 2017 Refinancing Term B Lenders to make 2018 Repriced 2017 Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing First Lien Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase 2017 Refinancing Term B Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Administrative Agent shall have received a Borrowing Request as set forth in Section 3 above and setting forth the information required by Section 2.03 of the Existing First Lien Credit Agreement.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2017 Refinancing Term B Loans, all accrued and unpaid interest interest, fees and other amounts accrued and unpaid on their the Existing Term B Loans to, but not including, the Effective Date, and substantially simultaneously with the borrowing of the 2017 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(cd) The Administrative Agent shall have received a certificate of the Secretary Executive Vice President or Assistant Secretary Vice President or similar officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower Borrower, Holdings or HoldingsSuperior Cake Products, Inc., certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date or, in the case of Hostess Superior Cake Products, Inc., June 7, 2016 (the “Joinder Date,”);
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date or, in the case of Hostess Superior Cake Products, Inc. and Superior Cake Products, Inc., the Joinder Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,;
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, ; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(de) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ef) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2017 Refinancing Arranger or any 2017 Refinancing Term B Lender, on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of- pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fg) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested not less than five (5) three Business Days prior to the Effective Date.
(gh) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b4(b) and 3(d4(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders Lender to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are a Loan is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) fulfillment of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) 3.1. The Administrative Agent (or its counsel) following documents shall have received (i) from each Cashless Settlement Repricing been duly authorized, executed and delivered by the Borrower to the Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) shall be in form and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably substance satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower Lender and its counsel and shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are be in full force and effect on the Effective Date,date of the Loan. Prior to the first Loan:
(va) certifying an executed Loan Agreement, and all executed documents, certificates and instruments contemplated by this Loan Agreement, including but not limited to the Security Agreement;
(b) a certified copy of the resolution of the Board of Directors of Borrower, certified by the Secretary or a responsible officer thereof, duly authorizing execution, delivery and performance of this Loan Agreement and the Note contemplated hereby;
(c) a certificate of recent date from the Secretary of State of the state of incorporation of Borrower as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.its good standing;
(d) The Administrative Agent shall have receivedan incumbency certificate of Borrower dated as of the date of funding, as to (i) the person or persons authorized to execute and deliver this Loan Agreement, the Note, the Security Agreement, and any other documents to be executed on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise them in connection with the transactions contemplated hereunder shall have been paid on hereby and (ii) the signature of each person or prior to persons;
(e) the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).executed Note;
(f) The Administrative Agent documentary evidence satisfactory to Lender that any and all liens or other security interests on any of Borrower's tangible or intangible property, including but not limited to accounts, computer hardware and software, copyrights, equipment, inventory, licenses, patents, trade secrets, trademarks, general intangibles, chattel paper or other property, and all proceeds thereof, shall have received on been released or prior otherwise subordinated to three Lender's security interests contemplated herein, except as otherwise provided by that certain agreement by and among ProFutures Bridge Capital Fund, L.P., a Delaware limited partnership (3) Business Days prior to the Effective Date all documentation "ProFutures"), Lender and other information Borrower, dated as of the type set forth in Section 3.23(a) April 28, 1998 and attached hereto as Exhibit D, and except as provided by that certain agreement by and among Uro-Tech, Ltd., Lender and Borrower, dated as of the Existing Credit AgreementApril 28, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.1998 and attached hereto as Exhibit E; and
(g) The Borrower shall have delivered to an expense plan and budget, including an acceptable cash control system for managing expenditures within the Administrative Agent a certificate from a Responsible Officer of the Borrower dated plan and budget, ("Expense Plan"), attached hereto as of the Effective Date, to the effect set forth in Sections 3(bSchedule 3.1(g) and 3(d) hereof.; and
(h) At least three (3) Business Days prior documentary evidence satisfactory to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requestsany Letter of Intent or contract arrangements of whatever nature between Borrower and CTI PET Systems, a certification regarding beneficial ownership as required by Inc. have expired or otherwise been terminated, and that there are no obligations of whatever nature in effect between Borrower and CTI PET Systems, Inc. For each Loan (including the Beneficial Ownership Regulation in relation to such Borrower.first):
(i) The Administrative Agent an officer's certificate in the form of Exhibit B which shall include the written request from Borrower setting forth the requested amount of the Loan and the proposed date of borrowing;
(j) for each Loan after the first Loan, documentary evidence satisfactory to Lender, including but not limited to Exhibit B, that Borrower is adhering strictly to the Expense Plan; and
(k) such other documents and evidence with respect to Borrower as Lender may reasonably request.
3.2. On the date of each borrowing pursuant to Section 2.1 above, (i) no Default or event that with the giving of notice or lapse of time or both would constitute a Default hereunder has occurred and is continuing or would result from the performance of this Loan Agreement, (ii) no material adverse change shall have received occurred since the date of this Loan Agreement in the financial condition or operations of the Borrower, and (iii) there shall be no juridical proceeding or regulatory action instituted by or against the Borrower, or, to the best of Borrower's knowledge, any threatened proceeding or action which may materially adversely affect the business, property, operation, or financial condition of the Borrower. By acceptance of a Borrowing Request Loan, Borrower represents as required by of such Loan date, that each of the foregoing items is true. The foregoing notwithstanding, Lender acknowledges that it has been advised of the status of Borrower's lease for space located at 1304 Langham Creek Drive, #310, Hxxxxxx, Xxxxx 00000, as set forth on Schedule 4.5 herein, and that such status will not be deemed a breach of this Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03)3.2.
Appears in 1 contract
Samples: Loan Agreement (Positron Corp)
Conditions of Lending. The obligations of the 2018 Repricing 2020 Incremental Term B Lenders to make 2018 Repriced 2020 Incremental Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the 2020 Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing 2020 Incremental Term Lenders and 2018 Increase B Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “2020 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase 2020 Incremental Term B Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower Administrative Agent shall have paid to received a Borrowing Request as set forth in Section 3 above and setting forth the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making information required by Section 2.03 of the 2018 Repriced Term LoansExisting Credit Agreement, all accrued and unpaid interest on their Existing Term Loans to, but not including, which Borrowing Request may be conditioned upon the Effective Dateeffectiveness of this Agreement.
(c) The Acquisition shall have been consummated simultaneously or substantially concurrently with the borrowings of the 2020 Incremental Term B Loans in accordance with applicable law and on the terms described in the Purchase Agreement, without giving effect to any amendment, waiver, consent or other modification thereof that is materially adverse to the interests of the 2020 Incremental Arrangers and the 2020 Incremental Term B Lenders (in their respective capacities as such) unless approved by the 2020 Incremental Arrangers (which approval shall not be unreasonably withheld or delayed).
(d) Since December 29, 2018, there shall not have been a Material Adverse Effect (as defined in the Purchase Agreement).
(e) The Administrative Agent shall have received a certificate of the Secretary Executive Vice President or Assistant Secretary Vice President or similar officer of each Loan Party dated the 2020 Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since October 1, 2019 (the Closing “October 2019 Effective Date,”);
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the 2020 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing October 2019 Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the 2020 Effective Date,;
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, ; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(df) The Administrative Agent shall have received, on behalf of itself and the 2020 Incremental Term B Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the 2020 Effective Date, (B) addressed to the Administrative Agent and the 2020 Incremental Term B Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(eg) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any 2020 Incremental Arranger or any 2020 Incremental Term B Lender, on or prior to the 2020 Effective Date and, to the extent invoiced at least three Business Days prior to the 2020 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the 2020 Effective Date (which amounts may be offset against the proceeds of the 2020 Incremental Term B Loans made hereunder).
(fh) The Administrative Agent shall have received:
(i) (w) the audited consolidated balance sheets of Voortman and its subsidiaries for the fiscal years ended December 30, 2017 and December 29, 2018 and the related audited consolidated statements of income and cash flows for such fiscal years then-ended; (x) the unaudited consolidated balance sheets of the Corporation and its subsidiaries for the fiscal years ended December 30, 2017 and December 29, 2018 and the related unaudited consolidated statements of income and cash flows for such fiscal years then-ended, (y) the unaudited consolidated balance sheets of SPC Investment and its subsidiaries for the fiscal years ended December 30, 2017 and December 29, 2018 and the related unaudited consolidated statements of income and cash flows for such fiscal years then-ended and (z) the unaudited consolidated balance sheets of SPC Holdings and its subsidiaries for the fiscal years ended December 30, 2017 and December 29, 2018 and the related unaudited consolidated statements of income and cash flows for such fiscal years then-ended;
(ii) the unaudited consolidated balance sheets of Voortman and its subsidiaries for the 9 periods ending September 7, 2019; and
(iii) a pro forma consolidated balance sheet and a related consolidated statement of income for the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period of the Borrower ended at least 45 days (or, if such most recently completed four-fiscal quarter period ends on a fiscal year end, 90 days) prior to the 2020 Effective Date, prepared in good faith after giving effect to the Transactions as if the Transactions had occurred.
(i) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the 2020 Effective Date (i) all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) three Business Days prior to the 2020 Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any 2020 Incremental Term B Lender shall have received a Beneficial Ownership Certification in relation to the Borrower to the extent such information has been requested by such 2020 Incremental Term B Lender not less than ten Business Days prior to the 2020 Effective Date.
(gj) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the 2020 Effective Date, to the effect set forth in Sections 3(b4(b), 4(d), 5(c) and 3(d5(d) hereof.
(hk) At least three The Administrative Agent shall have received (3i) Business Days prior the results of recent UCC lien, judgment and tax searches with respect to each Loan Party and (ii) a completed standard flood hazard determination form for the real property covered by the Existing Mortgage (as defined below) and if any improvements to such real property are located in a special flood hazard area, (A) a notification to the Borrower by the Administrative Agent and countersigned by the Borrower and (B) a copy of the flood insurance policy, the Borrower’s application for a flood insurance policy, a declaration page confirming that flood insurance has been issued, or other evidence of flood insurance reasonably satisfactory to the Administrative Agent and such additional customary documents and filings (excluding amendments to the Mortgages and title endorsement bringdowns) in order to assure that the 2020 Incremental Term B Loans are secured by the Collateral ratably with the Existing Term Loans.
(l) On the 2020 Effective Date, the Target Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct) (except in the case of any Borrower that qualifies Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as a “legal entity customer” under 31 C.F.R. §1010.230 (of the “Beneficial Ownership Regulation”) shall deliverrespective date or for the respective period, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrowercase may be).
(m) Prior to, or substantially contemporaneously with, the funding of the 2020 Incremental Term B Loans, the indebtedness of the Target incurred under each of (i) the Credit Agreement between Voortman, as borrower, and The Manufacturers Life Insurance Company, as lender, dated October 9, 2015, as amended March 29, 2019, and (ii) the Credit Agreement between Voortman, as borrower, and The Bank of Nova Scotia, Royal Bank of Canada and The Toronto-Dominion Bank, as lenders, dated October 9, 2015, as amended March 29, 2019, shall have been repaid in full and all commitments to extend credit thereunder shall have been terminated and any security interests and guarantees in connection therewith shall have been terminated and/or released (or arrangements for such repayment, termination and release shall have been made).
(n) The Administrative Agent shall have received a Borrowing Request solvency certificate in form and substance reasonably acceptable to the Administrative Agent and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the 2020 Transactions (as required by Section 2.03 (such term is defined in Annex A hereto) to be consummated on or a Borrowing Request shall have been deemed given in accordance with prior to the last paragraph of Section 2.03)2020 Effective Date.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing 2017 Replacement Term Lenders to make 2018 Repriced 2017 Replacement Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the 2017 Amendment Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 16.01 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “2017 Amendment Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2017 Replacement Term Loan Exchange Lender, each 2017 Post-Closing Repricing Option Lender and each 2017 Additional Replacement Term Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from Lenders that constitute Majority Lenders and (iii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement Amendment signed on behalf of such party (or a Repricing 2017 Replacement Term Loan Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement Amendment (or a Repricing 2017 Replacement Term Loan Consent).
(b) The Administrative Agent shall have received from the Loan Parties a certified copy of (i) the charter documents and by-laws (or equivalent governing documents) of each Loan Party (other than any Foreign Guarantor); (ii) the resolutions of the board of directors (or any duly authorized committee or other governing body thereof) or of the shareholders, as the case may be, of each Loan Party (other than any Foreign Guarantor) approving the repricing of the Term Loans and other matters provided for in this Amendment and approving the entering into of all other related Credit Documents to which they are a party and the completion of all transactions contemplated thereunder; (iii) all other instruments evidencing necessary corporate, company or partnership action of each Loan Party (other than any Foreign Guarantor) and of any required Authorization with respect to such matters; and (iv) certifying the names and true signatures of its officers authorized to sign this Amendment and the other Credit Documents manually or by mechanical means.
(c) The Administrative Agent shall have received a certificate of status, compliance, good standing or like certificate with respect to each Loan Party (other than any Foreign Guarantor) issued by the appropriate government official in the jurisdiction of its incorporation.
(d) the Loan Parties shall have taken all action reasonably requested by the Administrative Agent to maintain the perfection and priority of the security interest of the Administrative Agent for the benefit of the Secured Creditors (as defined in the Security Documents) in the Collateral granted under the Security Documents.
(e) Each of the representations and warranties contained in Section 3 above shall be true and correct.
(f) The Administrative Agent shall have received a certificate, dated as of the 2017 Amendment Effective Date and signed by a Responsible Officer of the Borrower and Open Text, confirming the accuracy of the representations and warranties set forth in Section 3 above.
(g) The Borrower shall have paid to the Administrative Agent, for the ratable account of each the Existing Term Lender Lenders immediately prior to the 2017 Amendment Effective Date, simultaneously with the making of the 2018 Repriced 2017 Replacement Term Loans, all accrued and unpaid interest on their respective Existing Term Loans to, but not including, the 2017 Amendment Effective Date.
(ch) The Administrative Agent shall have received a certificate of the Secretary all fees payable thereto or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate 2017 Refinancing Arranger or articles of incorporationany 2017 Replacement Term Lender, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the 2017 Amendment Effective Date and, to the extent invoiced at least three Business Days prior to the 2017 Amendment Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Credit Document on or prior to the 2017 Amendment Effective Date (which amounts may be offset against the proceeds of the Term Loans made hereunder).
(fi) The the Administrative Agent shall have received on or prior to three reasonably satisfactory opinions of (3i) Business Days prior Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special United States counsel to the Effective Date all documentation Loan Parties, (ii) Osler, Xxxxxx & Harcourt LLP, special Delaware counsel to the Loan Parties, (iii) Osler, Xxxxxx & Harcourt LLP, special Ontario counsel to the Loan Parties, (iv) Xxxxxxx XxXxxxxx, special Nova Scotia counsel to the Loan Parties and (v) Xxxxxx X Xxxxxx, Chief Legal Officer and Corporate Secretary of Open Text, in each case as is relevant to confirm, inter alia, corporate existence, due authorization, non-contravention of other information Debt of any Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) which is outstanding in an aggregate principal amount exceeding $75,000,000, execution by the Borrower and Domestic Guarantors and enforceability of the type set forth in Section 3.23(a) Amendment and the validity and perfection of the Existing Encumbrances created under the applicable U.S. and Canadian Credit Agreement, Documents after giving effect to the extent such information has been requested Amendment; for the avoidance of doubt, the opinion of Xxxxxx X Xxxxxx, Chief Legal Officer and Corporate Secretary of Open Text shall not less than five (5) Business Days prior cover enforceability of the Amendment or the validity and perfection of the Encumbrances created under the applicable U.S. and Canadian Credit Documents after giving effect to the Effective DateAmendment.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(ij) The Administrative Agent shall have received a Borrowing Request certificate, dated as required of the 2017 Amendment Effective Date and (x) signed by Section 2.03 a Financial Officer of Open Text attesting to the Solvency of Open Text and its Subsidiaries, taken as a whole and (y) signed by a chief financial officer or another senior financial or accounting officer (including the president) of the Borrower attesting to the Solvency of the Borrower and its Subsidiaries, on a Borrowing Request consolidated basis.
(k) The Administrative Agent shall have been deemed given received an Accommodation Notice for the Accommodation occurring on the 2017 Amendment Effective Date in accordance with the last paragraph delivery requirements under Section 3.02 of Section 2.03the Existing Credit Agreement (or such later time as may be agreed by the Administrative Agent in its discretion).
Appears in 1 contract
Samples: Credit Agreement (Open Text Corp)
Conditions of Lending. The obligations of the 2018 Repricing Term Additional Lenders to make 2018 Repriced the Additional Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case hereunder on the Effective Date, Restatement Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III hereof and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing 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.
(c) The Borrower and each other Loan Party shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed at or prior to the time of such Borrowing, and at the time of and immediately after such Borrowing, no Event of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) Xxxxxxx Xxxxxx L.L.P., counsel for the Borrower, substantially to the effect set forth in Exhibit F-1, and (ii) each local counsel listed on Schedule 4(d), substantially to the effect set forth in Exhibit F-2, in each case (A) dated the Restatement Date, (B) addressed to the Administrative Agent and the Lenders and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) a certificate, dated the Restatement Date and signed by the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
Party, certifying that (iA) either (x) attaching a copy of except as set forth on any schedule attached thereto, the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents incorporation of such Loan Party previously delivered on the Original Closing Date (or such later date on which such person became a Loan Party) have not been amended since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws date of such jurisdictiondelivery, (B) of such Loan Party except as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that set forth on any schedule attached thereto is a true and complete copy of thereto, the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect and delivered on the Effective Original Closing Date and at all times (or such later date on which such person became a Loan Party) have not been amended since a date prior to the date of the resolutions described in clause such delivery, (ivC) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Amendment Agreement (including Exhibit A thereto in the form of this Agreement) and the other Loan Documents executed in connection with this Agreement to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on effect, (D) attached thereto is a certificate as to the Effective Date,
good standing of such Loan Party as of a recent date by the Secretary of State (vor other similar official) certifying of the jurisdiction of its organization, and (E) as to the incumbency and specimen signature of each officer executing the Amendment Agreement or any other Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
; (viii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of clause (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP above; and (iiiii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated such other documents as the Effective Date, (B) addressed to Lenders or the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as certificate, dated the Restatement Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Article IV.
(h) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or the Existing Credit Agreement.
(i) The Security Documents shall be in full force and effect on the Restatement Date, and each document (including Uniform Commercial Code financing statements and modifications to the Mortgages referred to in Section 3.04(a)) required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create or continue in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority Lien on, and security interest in, the Collateral (subject to any Liens expressly permitted by Section 2.03 (or a Borrowing Request 6.02) shall have been deemed given delivered to the Collateral Agent. The Pledged Collateral (as defined in the Guarantee and Collateral Agreement) and the Foreign Pledged Collateral shall be duly and validly pledged under the Guarantee and Collateral Agreement or the applicable Foreign Pledge Agreement, as the case may be, to the Collateral Agent for the benefit of the Secured Parties, and certificates representing such Pledged Collateral and Foreign Pledged Collateral (to the extent certificated), in each case accompanied by instruments of transfer and stock powers endorsed in blank, shall have been delivered to the Collateral Agent (or in the case of any uncertificated Foreign Pledged Collateral, arrangements consistent with applicable local law and reasonably satisfactory to the Collateral Agent in respect thereof shall have been implemented).
(j) The Collateral Agent shall have received a certificate, dated the Restatement Date and signed by a Responsible Officer of the Borrower, certifying that, except as set forth on any schedule attached thereto, the information set forth on the Perfection Certificate is complete, correct and accurate as of the Restatement Date.
(k) The Amendment Agreement shall have become effective in accordance with its terms.
(l) Immediately after giving effect to the last paragraph of Section 2.03)Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or Preferred Equity Interests other than (a) Indebtedness outstanding under this Agreement, (b) Indebtedness set forth on Schedule 6.01 and (c) the Existing Preferred Stock.
(m) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the Transactions or the other transactions contemplated hereby.
(n) The Additional Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
Appears in 1 contract
Conditions of Lending. The obligations obligation of the 2018 Repricing Term Lenders each Lender to make 2018 Repriced Term Loans and of advances to the 2018 Increase Lenders to make Additional Term Loans, in each case Borrowers on the Effective Date, are Closing Date is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) 9.08 of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance Each of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as other documentation relating to the incumbency and specimen signature of each officer executing any Term Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent provided hereunder shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) be in form and substance reasonably satisfactory to the Administrative Agent covering and duly executed and delivered by each of the Loan Parties and other parties thereto.
(b) Administrative Agent shall have received, in respect of each Loan Party,
(i) the notes payable to the order of the Lenders to the extent requested at least three Business Days prior to the Closing Date in accordance with Section 2.04(e);
(ii) copies of each organizational or constitutive document (along with any amendments thereto) certified as of the Closing Date or a recent date prior thereto by the appropriate Governmental Authority;
(iii) certificate of the secretary or an assistant secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(iv) resolutions of the board of directors (or similar governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and
(v) a good standing certificate from the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation dated the Closing Date or a recent date prior thereto.
(c) All reasonable and documented out-of-pocket fees and expenses (including reasonable and documented fees and expenses of outside counsel) required to be paid to the Administrative Agent on or before the Closing Date shall have been paid (including fees owed to the Lenders to be paid to the Administrative Agent for the accounts of the Lenders), to the extent invoiced at least three Business Days prior to the Closing Date.
(d) The Administrative Agent and Lenders and their respective counsel shall have received originally executed copies of a favorable written opinion of (i) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Loan Parties and (ii) local counsel for the Loan Parties in states in which the Loan Parties are organized or formed, in each case, dated as of the Closing Date, addressing such matters relating to this Agreement as the Administrative Agent shall may reasonably requestrequest in form and substance reasonably satisfactory to the Administrative Agent.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid on or prior to received a certificate from the Effective Date (which amounts may be offset against chief financial officer of Holdings substantially in the proceeds form of the Loans made hereunder).Exhibit I.
(f) The Administrative Agent shall have received on a completed Perfection Certificate, dated as of the Closing Date and signed by a Financial Officer of the Borrowers, together with all attachments contemplated thereby.
(g) Since December 31, 2018 there has been no event or prior to three occurrence that has had a Material Adverse Effect.
(3A) Each Lender shall have received at least one Business Days Day prior to the Effective Closing Date all documentation and other information of the type set forth reasonably requested in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) writing by them at least three Business Days prior to the Effective Date.
Closing Date in order to allow the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and (gB) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, extent any Borrower that Loan Party qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, at least three Business Days prior to each the Closing Date, any Lender that so requestshas requested, in a written notice to Holdings at least five Business Days prior to the Closing Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation Certification in relation to such BorrowerLoan Party, shall have received such Beneficial Ownership Certification.
(A) The amendment and extension of the Maturity Date (as defined in the Existing Revolving Credit Agreement) of the Existing Revolving Credit Agreement shall have occurred or shall be consummated substantially concurrently with the Closing Date and (B) the Closing Date (as defined in the Revolving Credit Agreement) under the Revolving Credit Agreement shall have occurred or will occur substantially concurrently with the Closing Date and the Loan Documents (as defined in the Revolving Credit Agreement) required by the terms of the Revolving Credit Agreement shall have been, or substantially concurrently with the Closing Date shall be, executed and delivered;
(j) The Senior Notes shall have been issued, or substantially concurrently with the Closing Date;
(k) The ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, the Guarantee and Collateral Agreement and each other Security Document shall have been duly executed and delivered by each of the applicable Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and together therewith, the Administrative Agent shall have received the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) Proper uniform commercial code financing statements for all applicable jurisdictions of the Loan Parties as deemed necessary by the Administrative Agent in order to perfect and protect the Liens and security interests created or purported to be created pursuant to the Security Documents covering the Collateral;
(ii) Copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties;
(iii) for each Mortgaged Property specified on Schedule 1.01(a):
(A) the Flood Insurance Documents;
(B) mortgage amendments, supplements or restatements of the existing Mortgages, in each case, made for the purpose of providing that such Mortgages will secure the Obligations and in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Amendments”) that have been duly executed, acknowledged and delivered by a duly authorized officer of the appropriate Loan Party and are in form suitable for filing and recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable, together with fully paid date-down and modification endorsements to the Mortgage Policies issued in connection with each existing Mortgage or, where such date-down or modification endorsements are not available to insure any such Mortgage, a new title insurance policy with respect to the applicable Mortgage, as previously amended and as amended (or amended and restated) by such Mortgage Amendment (or, in each case, a commitment to issue such endorsements or new policy having the effect of such policy so endorsed or such a new policy, as the case may be), each issued by a title insurer reasonably acceptable to the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent which insures that such Mortgage, as previously amended and as amended (or amended and restated) by the applicable Mortgage Amendment, continues to create a valid first Lien on the applicable Mortgaged Property described therein, subject only to Liens permitted under the Loan Documents; and
(iv) evidence of all insurance required to be maintained pursuant to Section 5.02, and evidence that the Administrative Agent shall have been named as an additional insured or loss payee, as applicable, on all insurance policies covering loss or damage to Collateral; and
(v) evidence that such other documents, instruments or actions deemed necessary or advisable by the Administrative Agent to perfect and protect the Liens and security interests (and the first priority thereof with respect to Term Facility First Lien Collateral and, if applicable, the second priority thereof with respect to Revolving Facility First Lien Collateral) created or purported to be created pursuant to the Guarantee and Collateral Agreement shall have been duly delivered or completed, including, without limitation, the delivery of Uniform Commercial Code financing statements in proper form for filing for all applicable jurisdictions of the Loan Parties and provision having been made for the payment of any fees or taxes required in connection with the filing of such documents, instruments or financing statements; provided, however, that, each of the requirements set forth above, (except for the (I) execution and delivery of the Guarantee and Collateral Agreement, (II) delivery of the evidence and documents referred to in clause (iii)(A) above, and (III) to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Credit Code or customary “short form” intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office or (y) by the delivery of stock certificates of the Borrowers) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrowers’ use of commercially reasonable efforts to provide such items on prior to the Closing Date if the Borrowers agree to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion).
(l) The Administrative Agent shall have received a notice of Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph requirements hereof.
(m) On the Closing Date, after giving effect to the Transactions, none of Holdings or any of its Subsidiaries shall have any third party Indebtedness for borrowed money other than (i) the Term Loan Facility, (ii) the facilities provided under the Revolving Credit Agreement, (iii) the Senior Notes and (iv) other Indebtedness permitted by Section 2.03)6.01. The making of the initial advance to the Borrowers on the Closing Date by the applicable Lenders hereunder shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each such Lender that each of the conditions precedent set forth in this Article IV shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term the Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective DateBorrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the date of the making of such Loans 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.
(c) At the time of and immediately after the making of such Loans, no Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) either Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, substantially to the effect set forth in Exhibit H-1, and (xii) attaching each local counsel listed on Schedule 4.01, substantially to the effect set forth in Exhibit H-2, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders and (C) covering such matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests each of its counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such each Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction State of its organization or (y) with respect to any Loan Party other than the Borrower or HoldingsDelaware, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such each Loan Party as of a recent date date, from such Secretary of State State; (ii) a certificate of the Secretary or other similar official),
Assistant Secretary of each Loan Party dated the Closing Date and certifying (iiiA) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) bylaws of such Loan Party as in effect on the Effective Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or below, (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate of incorporation of such Loan Party have not been amended since the date of the last amendment thereto shown on the Effective Date,
certificate of good standing furnished pursuant to clause (vi) certifying above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
; (viiii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and clause (ii) Xxxxxxx Xxxxxx L.L.P., in each case, above; and (Aiv) dated such other documents as the Effective Date, (B) addressed to Lenders or the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Article IV.
(h) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(i) The Security Documents shall have been duly executed by the Borrower, each Loan Party that is to be a party thereto and, in the case of the Pledge Agreement, Parent, and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(j) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such persons, in which the chief executive office of each such person is located and in the other jurisdictions in which such persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 2.03 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(or a Borrowing Request l) The Redemption shall have been deemed given been, or substantially simultaneously with the funding of Loans on the Closing Date shall be, consummated in accordance with the last paragraph Redemption Agreement and applicable law, without giving effect to any modification or waiver that is materially adverse to the interests of the Lenders of any terms or conditions of the Redemption Agreement unless otherwise approved by the Required Lenders. The Administrative Agent shall have received copies of the Redemption Agreement and all certificates, opinions and other documents delivered thereunder, certified by a Financial Officer as being complete and correct.
(m) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement and the Second Lien Credit Agreement and (b) Indebtedness set forth on Schedule 6.01.
(n) The Lenders shall have received the financial statements and opinion referred to in Section 2.03)3.05.
(o) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower certifying that the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent.
(p) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(q) The Lenders shall have received, at least five days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
Appears in 1 contract
Samples: First Lien Credit Agreement (Weight Watchers International Inc)
Conditions of Lending. The obligations of the 2018 Repricing Incremental Term Loan Lenders to make 2018 Repriced Initial Incremental Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Incremental Effective Date, the effectiveness of the Delayed Draw Incremental Term Loan Commitments as of the Incremental Effective Date are subject (at the time of or substantially concurrently with the making of such Loanstherewith) to the satisfaction (or waiver in accordance with Section 9.09 9.02 of the Existing Credit Agreement or by a majority of the 2018 Repricing Incremental Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Incremental Effective Date”):
(a) The Administrative Agent (or its counsel) shall have (1) received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Incremental Term Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement Amendment signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Amendment.
(b) The Borrower Administrative Agent shall have paid received, in the case of any Borrowing to occur on the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Incremental Effective Date, simultaneously with the making a Borrowing Request as required by Section 2.03 of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective DateCredit Agreement.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party Party, dated the Incremental Effective Date., executed by any Responsible Officer of such Loan Party, including or attaching:
(i) either (x) attaching a copy of each Organizational Document of each Loan Party certified, to the certificate or articles of incorporationextent applicable, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization applicable Governmental Authority or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents Organization Documents of such Loan Party Parties since the Closing Incremental Effective Date,
(ii) attaching a certificate as to signature and incumbency certificates of the good standing (to the extent such concept or a similar concept exists under the laws Responsible Officers of such jurisdiction) of such each Loan Party as of executing this Amendment and the other Loan Documents which it is a recent date from such Secretary of State (or other similar official)party,
(iii) either (x) certifying that attached thereto is a true and complete copy resolutions of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent and/or similar governing body) bodies of such each Loan Party (or its managing general partner or managing member) approving and authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party it is a party andparty, in the case certified as of the BorrowerIncremental Effective Date by its secretary, the borrowings hereunder, and that such resolutions have not been modified, rescinded an assistant secretary or amended and are a Responsible Officer as being in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Partywithout modification or amendment, and
(viiv) certifying as a good standing certificate (to the absence extent such concept exists) from the applicable Governmental Authority of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such each Loan Party’s jurisdiction of incorporation, organization or formation.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the received a written opinions of opinion (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Incremental Term Loan Lenders on and dated the Incremental Effective Date Date) of (i) Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx LLP, New York and Delaware counsel for the Loan Parties and (Cii) Gunster, Florida counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement Amendment as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any 2019 Incremental Arranger, on or prior to the Incremental Effective Date and, to the extent invoiced at least two Business Days prior to the Incremental Effective Date (except as otherwise reasonably agreed by Holdings), reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Mxxxx & Vxx Xxxxx PLLC and King & Spalding LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any other Loan Document on or prior to the Incremental Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder)., in each case to the extent required by the Amended Credit Agreement or that certain Engagement Letter, dated as of April 24, 2019, by and among the Borrower, SunTrust Bank and SunTrust Rxxxxxxx Xxxxxxxx, Inc.
(f) The Administrative Agent or relevant Incremental Term Loan Lender, as applicable, shall have received on or prior to the date that is three (3) Business Days prior to the Incremental Effective Date (i) all documentation and other information of the type set forth in Section 3.23(a4.01(n) of the Existing Credit AgreementAgreement and (ii) if applicable, a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230, in each case, to the extent such information has been reasonably requested by the Administrative Agent or an Incremental Term Loan Lender not less than five (5) 10 Business Days prior to the Incremental Effective Date.
(g) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower substantially in the form of Exhibit F to the Credit Agreement.
(h) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Incremental Effective Date, to the effect set forth in Sections 3(a), 3(b), 3(c) and 3(d) hereof.
(hi) At least three (3) Business Days prior The Borrower shall have delivered to the Administrative Agent a certificate from the Chief Financial Officer of the Borrower dated as of the Incremental Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (to the “Beneficial Ownership Regulation”effect set forth in Section 3(e) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrowerhereof.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment (European Wax Center, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term the Loans and of hereunder shall not become effective until the 2018 Increase Lenders to make Additional Term Loans, in date on which each case on the Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions is satisfied:
(a) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(b) The representations and warranties set forth in Article III shall be true and correct in all material respects on and as of the date of such satisfaction or waiverBorrowing with the same effect as though made on and as of such date, except to the “Effective Date”):extent such representations and warranties expressly relate to an earlier date.
(ac) At the time of and immediately after such Borrowing, no Event of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (yii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery telecopy transmission of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)Agreement) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(be) The Borrower Administrative Agent shall have paid received, on behalf of itself and the Lenders, a favorable written opinion of (i) Xxxxx Xxxxxxxxxx LLP, U.S. counsel for Parent and the Borrower, (ii) Freehills, Australian counsel for Parent, and (iii) each local counsel reasonably acceptable to the Administrative Agent in each of the jurisdictions listed in Schedule 3 (except where any Supplemental Security required in that jurisdiction has not been provided), in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders and (C) in form and substance reasonably acceptable to the Administrative Agent, for and Parent and the ratable account of each Existing Term Lender immediately prior Borrower hereby request such counsel to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Datedeliver such opinions.
(cf) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation incorporation or the constitution or other equivalent constituent and governing organizational documents, including all amendments thereto, of such Loan Partyeach Group Party that is to execute a New Transaction Document, certified as of a recent date by the Responsible Officer of such Group Party or, in the case of a US Obligor, by the Secretary of State (or other similar official) of the jurisdiction state of its organization or (y) with respect to any Loan Party other than the Borrower or Holdingsorganization, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan each Group Party as of a recent date date, from such Secretary of State State; (ii) a certificate of the Secretary or other similar official),
Assistant Secretary of each Group Party or Parent dated the Closing Date and certifying (iiiA) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Group Party as in effect on the Effective Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or (y) with respect to any Loan below, if such Group Party other than the Borrower or Holdings, certifying that there have been no changes to the has by-laws laws, (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documentsB) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) shareholders of such Loan Group Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan New Transaction Documents executed in connection with this Agreement (other than the Supplemental Securities) to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect effect, (C) that the certificate or articles of incorporation or the constitution or other organizational documents of such Group Party have not been amended since the date of the last amendment thereto (including as shown on the Effective Date,
certificate of good standing furnished pursuant to clause (vi) certifying above, if applicable) and (D) as to the incumbency and specimen signature of each officer or attorney in fact executing any Loan New Transaction Document executed or any other document delivered in connection with this Agreement herewith on behalf of such Loan Party, and
Group Party (viother than the Supplemental Securities); and (iii) certifying a certificate of another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Partyclause (ii) above.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fg) The Administrative Agent shall have received on or prior to three (3) Business Days prior to a certificate, dated the Effective Closing Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from signed by a Responsible Officer of Parent and the Borrower dated as of Borrower, confirming compliance with the Effective Date, to the effect conditions precedent set forth in Sections 3(bparagraphs (b) and 3(d(c) hereofof this Article IV.
(h) At least three (3) Business Days The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Closing Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliverincluding, to each Lender that so requeststhe extent invoiced, a certification regarding beneficial ownership as reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Beneficial Ownership Regulation in relation to such BorrowerBorrower hereunder or under any other Transaction Document.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (Perfection Certificate with respect to each Group Security Provider that is incorporated or organized under the laws of the United States or a Borrowing Request State thereof, dated the Closing Date and duly executed by a Responsible Officer of Parent and the Borrower.
(j) Each of the New Security Documents (other than a Supplemental Security), in form and substance satisfactory to the Administrative Agent, shall have been, if applicable, duly executed by the parties thereto and delivered to the Security Trustee and shall be in full force and effect.
(k) The Administrative Agent shall have received a certificate of currency from a reputable insurance broker in relation to the Group's global insurance policy confirming that that policy complies with Section 5.01(j).
(l) BPC1 shall have (i) a relevant interest in at least 90% (by number) (disregarding any relevant interests that Parent has in shares of Xxxxxxx Xxxxxxx merely because of the operation of Section 608(3) of the Corporations Xxx 0000 of Australia) of the ordinary shares of Xxxxxxx Xxxxxxx and (b) acquired at least 75% (by number) of the ordinary shares of Xxxxxxx Xxxxxxx that BPC1 offered to acquire pursuant to the Offer (whether such interests were acquired under the Offer or otherwise).
(m) Evidence that the Offer has not been deemed given amended or varied since first issue of the Offer without the prior written consent of the Required Lenders; provided that such consent is not required (i) unless the amendment or variation would result in accordance (A) the bid price for each share of Xxxxxxx Xxxxxxx under the Offer being an amount which, when multiplied by the aggregate number of all shares being bid for by BPC1 would exceed the total commitment of the Facility, the Australian Term Facility, the NZ Holdings Capital Notes Bridge Facility and all other committed sources of funding (other than the Revolving Credit Facility) to enable the acquisition of all of the shares of Xxxxxxx Xxxxxxx or (B) any condition of the Offer that is also a condition to funding under the Australian Facilities or the Facility being waived, or (ii) without limiting paragraph (l) of this Article IV, for BPC1 to drop its condition of the Offer with respect to having a relevant interest in at least 90% of the ordinary shares of Xxxxxxx Xxxxxxx.
(n) Parent and the Subsidiaries shall not, before BPC1 acquires all of the issued shares of Xxxxxxx Xxxxxxx, have consented to, approved or agreed to the payment or declaration of any dividends by Xxxxxxx Xxxxxxx or the making of any distributions by Xxxxxxx Xxxxxxx to its shareholders without the prior written consent of the Administrative Agent, acting on the instructions of the Required Lenders.
(o) After giving pro forma effect to the Acquisition and the financing therefor (including with respect to any reduction in the amount of any senior debt to be used to finance the Transactions), on the Closing Date (i) the ratio of Total Debt to Pro Forma LTM EBITDA shall not exceed 4.50 to 1.00 and (ii) the ratio of Total Senior Debt to Pro Forma LTM EBITDA shall not exceed 3.00 to 1.00.
(p) Substantially contemporaneous with, or prior to, the Borrowing to be made on the Closing Date, (i) each of the Senior Funding Agreement, the Term A Facility Agreement, the Revolving Facility Agreement, the New Subordinated Note Documents, the NZ Holdings Capital Notes Bridge Facility Agreement and the TLB Tranche 2 Credit Agreement shall have become effective and (ii) Parent shall use or shall have used at least (A) A$650,000,000 in cash on hand at Parent (the "Closing Date Cash on Hand") and (B) A$50,000,000 in proceeds from the exercise of share options of Parent held by Rank Group Limited on December 12, 2002 (the "Rank Proceeds") to finance a portion of the Acquisition and (iii) Parent and the Subsidiaries shall have borrowed or shall be entitled to issue debentures or borrow thereunder, as the case may be, and shall have issued or shall be entitled to issue New Subordinated Notes in aggregate amounts, when combined with the last paragraph Closing Date Cash on Hand, the Rank Proceeds and the proceeds of Section 2.03)the Facility, sufficient to finance the consummation of the Transactions.
(q) The Lenders shall have received (i) audited consolidated balance sheets and related statements of income, stockholders' equity and cash flows of Parent for the 2000, 2001 and 2002 Financial Years, in each case reconciled to U.S. GAAP, and
Appears in 1 contract
Samples: Credit Agreement (Burns Philp Netherlands European Holdings Bv)
Conditions of Lending. The obligations of the 2018 Repricing 2021 Refinancing Term B Lenders to make 2018 Repriced 2021 Refinancing Term B Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the 2021 Effective Date, Date are subject (at the time of or substantially concurrently with the making of such 2021 Refinancing Term B Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing 2021 Refinancing Term Lenders and 2018 Increase B Lenders, collectively) of the following conditions (the date of such satisfaction or waiverwaiver of all such conditions, the “2021 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2021 Refinancing Term B Lender, (ii) from each Post-Closing Repricing Lender, each 2018 Increase Revolving Facility Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (iiiii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the 2021 Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing 2020 Effective Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the 2021 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing 2020 Effective Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the 2021 Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(dc) The Administrative Agent shall have received, on behalf of itself and the 2021 Refinancing Term B Lenders, the a written opinions opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the 2021 Effective Date, (B) addressed to the Administrative Agent and the 2021 Refinancing Term B Lenders on the 2021 Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ed) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid received all fees payable thereto or to any 2021 Refinancing Arranger, the Co-Manager and any 2021 Refinancing Term B Lender, on or prior to the 2021 Effective Date and, to the extent invoiced at least three Business Days prior to the 2021 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the 2021 Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fe) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the 2021 Effective Date all documentation and other information of the type set forth in Section 3.23(a3.25(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the 2021 Effective Date.
(gf) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the 2021 Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (on the date of such satisfaction or waiver, the “Effective Closing Date”)::
(ai) The Administrative Agent shall have received duly executed (or its counseland properly acknowledged where applicable) and delivered counterparts of each Loan Document in form, substance and date satisfactory to the Administrative Agent, (ii) in connection with the execution and delivery of the Security Instruments, the Administrative Agent shall be reasonably satisfied that the Security Instruments create first priority (subject in priority only to Permitted Prior Liens), perfected Liens on the Minimum Collateral Amount based upon the most recent Reserve Report delivered pursuant to Section 3.01(h), and (iii) the Administrative Agent shall have received UCC financing statements (duly authorized) as the Administrative Agent may request to perfect the Liens granted pursuant to such Security Instruments.
(b) The Administrative Agent shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lendersfinancial statements referred to in Section 4.04(a) and (ii) from each GAAP unaudited consolidated balance sheets and related statements of Holdingsincome, stockholders’ equity and cash flows of the Borrower (subject to year-end adjustments and the Subsidiary Loan Partiesabsence of footnotes) for each subsequent fiscal quarter ended at least 60 days before the Closing Date, either (x) a counterpart of this Agreement signed on behalf of such party (which financial statements shall not be materially inconsistent with the financial statements or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid forecasts provided previously to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate financial projections for the Borrower and its Subsidiaries for the remainder of the Secretary or Assistant Secretary or similar officer year 2014 and years 2015 and 2016, and a pro forma consolidated balance sheet and statements of each Loan Party dated the Effective Date.
(i) either (x) attaching a copy income and cash flow of the certificate or articles Borrower as of incorporationand for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to Section 3.01(b), certificate prepared after giving effect to the incurrence of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, the Loans as if such Debt had been incurred as of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrowerbalance sheet) or at the beginning of the period (in the case of such other financial statements), which financial statements shall not be materially inconsistent with the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as forecasts provided previously to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan PartyAdministrative Agent.
(d) The Administrative Agent shall have received, on behalf received a certificate of itself and a Responsible Officer of the Lenders, Borrower certifying that the written opinions of Borrower has (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP received all consents and approvals required by Section 4.03 and (ii) Xxxxxxx Xxxxxx L.L.P.has no other Debt in respect of borrowed money, in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement except as the Administrative Agent shall reasonably requestpermitted by Section 6.02.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds received a notice of the Loans made hereunder)such Borrowing as required by Section 2.03.
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation appropriate lien, judgment and other information customary UCC search certificates from the jurisdiction of the type set forth in Section 3.23(a) incorporation or formation of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Dateeach Loan Party.
(g) The Borrower Administrative Agent shall have delivered received the Reserve Reports of Xxxxxx, Xxxxxxxxx and Associates, Inc. evaluating the Loan Parties’ Proved Reserves as of December 31, 2013, and June 30, 2014, accompanied by a certificate covering the matters described in Section 5.12(d).
(h) The Administrative Agent shall have received a certificate from the Financial Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent certifying that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Transactions contemplated hereby, are solvent.
(i) (i) No Default or Event of Default shall have occurred and be continuing or would result from the Borrowing on the Closing Date; (ii) no default or event of default under the First Lien Credit Agreement shall have occurred and be continuing or would result from the Borrowings on the Closing Date; (iii) no default or event of default under the Material Contract shall have occurred and be continuing or would result from the Borrowing on the Closing Date; and (iv) the Borrower shall be in compliance with Section 6.01(a) on the Closing Date after giving effect to all Borrowings and other incurrences of Debt on the Closing Date and the application of proceeds therefrom.
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower dated as (i) certifying the matters referenced in Section 3.01(i) and (ii) attaching true, correct and complete copies of all First Lien Loan Documents, duly executed by the Effective Dateparties thereto, which documents shall be in form and substance reasonably satisfactory to the effect set forth in Sections 3(b) and 3(d) hereofAdministrative Agent.
(hk) At least three (3) Business Days prior The Administrative Agent shall have received the opinions of Xxxxxxxxx & Xxxxxxxx LLP, special counsel to the Effective DateBorrower, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, in form and substance acceptable to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such BorrowerAdministrative Agent.
(il) The Administrative Agent shall have received the opinions of Xxxxx, Tarrant & Xxxxx, LLP, special Kentucky counsel to the Borrower, in form and substance acceptable to the Administrative Agent.
(m) The Administrative Agent shall have received a Borrowing Request certificate of insurance coverage of the Loan Parties evidencing that each of the Loan Parties is carrying insurance in accordance with Section 4.12.
(n) The Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of each Loan Party in its jurisdiction of organization.
(o) The Administrative Agent shall have received a certificate of the Secretary, an Assistant Secretary or other authorized officer of each Loan Party setting forth (i) resolutions of its Board of Directors or similar governing authority with respect to the authorization of such Loan Party to execute and deliver the Loan Documents to which it is a party, to enter into the Transactions to which it is a party, (ii) the officers of such Loan Party (y) who are authorized to sign the Loan Documents to which such Loan Party is a party and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the Transactions, (iii) specimen signatures of such authorized officers, and (iv) the articles or certificate of incorporation and bylaws or similar organizational documents of such Loan Party, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to the contrary.
(p) The Administrative Agent shall have received from each party thereto duly executed counterparts (in such number as may be requested by the Administrative Agent) of the Security Instruments and the Guaranty consistent with the security documents securing the First Lien Facility.
(q) The Lenders shall have received, to the extent previously requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(r) All representations and warranties made by the Loan Parties under Article IV and in each other Loan Document shall be true and correct in all material respects (other than representations and warranties qualified as to materiality, which will be true and correct in all respects) on and as of the Closing 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 they will be true and correct as of such earlier date and no Default shall have occurred or be continuing.
(s) There shall not have occurred any event, change or condition since December 31, 2013, that, individually or in the aggregate, has had or would reasonably be expected to have, a Material Adverse Effect on the business, assets, results of operations or financial condition of the Borrower and its Restricted Subsidiaries.
(t) There shall be no litigation, governmental administrative or judicial action, actual, or to the knowledge of the Borrower, threatened, that would reasonably be expected to restrain or prevent the Transactions.
(u) After giving effect to the Transactions, the Borrower and its Restricted Subsidiaries shall have outstanding no Debt or preferred stock other than (i) the Loans, (ii) loans outstanding under the First Lien Credit Agreement and (iii) the Debt or preferred stock permitted by Section 2.03 6.02.
(v) The Administrative Agent and the Arrangers shall have received all Fees and other amounts due and payable on or prior to the Closing Date (or a Borrowing Request arrangements for the netting of such Fees and other amounts due and payable on the Closing Date shall have been deemed given in accordance with made), including, to the last paragraph extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of Section 2.03)all reasonable and documented legal fees and all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(w) The Borrower shall have obtained a public rating of the Credit Facility by each of S&P and Xxxxx’x.
(x) The Administrative Agent shall have received such other documents as the Administrative Agent or its special counsel may reasonably request.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Magnum Hunter Resources Corp)
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, hereunder are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):conditions:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate notice of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Datesuch Borrowing as required by Section 2.02.
(b) The representations and warranties set forth in Article III shall be true and correct in all material respects on and as of the Closing 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 they shall be true and correct in all material respects on and as of such earlier date.
(c) At the time of and immediately after the Borrowing to be made on the Closing Date, no Event of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby request such counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Partythe Borrower, TransDigm Holding, TransDigm and each other Significant Subsidiary of the Borrower, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction State of its organization or (y) with respect to any Loan Party other than the Borrower or Holdingsorganization, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to certificate, dated the good standing (to Closing Date and signed by the extent such concept Secretary or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Assistant Secretary of State (or other similar official),
(iii) either (x) the Borrower, certifying that (A) attached thereto is a true and complete copy of the by-laws (or partnership agreementof the Borrower, limited liability company agreement or TransDigm Holding, TransDigm and each other equivalent constituent and governing documents) Significant Subsidiary of such Loan Party the Borrower as in effect on the Effective Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below or below, (yB) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or other equivalent governing body) body of such Loan Party (or its managing general partner or managing member) the Borrower authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on effect, (C) attached thereto is a certificate as to the Effective Date,
good standing of the Borrower, TransDigm Holding, TransDigm and each other Significant Subsidiary of the Borrower as of a recent date by the Secretary of the State of State of its organization, and (vD) certifying as to the incumbency and specimen signature of each officer executing this Agreement or any other Loan Document executed or any other document delivered in connection with this Agreement on behalf therewith; (ii) a certificate of such Loan Party, and
(vi) certifying another officer as to the absence incumbency and specimen signature of any pending proceeding for the dissolution Secretary or liquidation of such Loan Party or, Assistant Secretary executing the certificate pursuant to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of clause (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP above; and (iiiii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated such other documents as the Effective Date, (B) addressed to Lenders or the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall may reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) above.
(h) The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the Closing Date, including fees pursuant to the Fee Letter and, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower thereunder, hereunder or under any other Loan Document.
(i) All requisite Governmental Authorities shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to prevent or impose materially burdensome conditions on the Transactions or the other transactions contemplated hereby.
(j) The Lenders shall have received, to the extent requested, all documentation and other information required by Section 2.03 bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(or a Borrowing Request k) The Administrative Agent shall have received evidence acceptable to the Administrative Agent and its counsel that the TransDigm Credit Agreement has been deemed given amended pursuant to an amendment in accordance with substantially the last paragraph form of Section 2.03).Exhibit D.
Appears in 1 contract
Samples: Loan Agreement (TransDigm Group INC)
Conditions of Lending. The obligations obligation of each Lender to fund the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, are Closing Date hereunder is subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing LenderAgent’s receipt of the following, each Post-Closing Repricing Lenderof which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each 2018 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) properly executed by a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making Responsible Officer of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each signing Loan Party dated the Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party andthereto, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to and its legal counsel:
(i) executed counterparts of this Agreement as (including all of the Administrative Agent shall reasonably request.Lenders party hereto);
(eii) All fees and expenses payable under the engagement letter or otherwise an Initial Loan Note executed by Borrower in connection with the transactions contemplated hereunder shall have been paid on or prior to the Effective Date (which amounts may be offset against the proceeds favor of the Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to each Lender that has requested an Initial Loan Note more than three (3) Business Days prior to the Effective Closing Date;
(iii) except where delivery after the Closing Date is contemplated therein, each Security Document set forth on Schedule 4.01(a)(iii) hereto, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied, if applicable, by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, and
(B) where appropriate and customary in each relevant jurisdiction where the Guarantors are organized, evidence that all documentation other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (and as have been notified to Borrower or its counsel no later than three (3) Business Days prior to the Closing Date) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other information action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (and as have been notified to Borrower no later than three (3) Business Days before the Closing Date) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(A) the executed legal opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special U.S. counsel to the Company and certain other Loan Parties, substantially in the form of Exhibit H; and
(B) the executed legal opinion of local counsel to the Lenders or the Loan Parties, as applicable, in the jurisdictions listed on Schedule 4.01(a)(v)(B), in form and substance reasonably satisfactory to the Administrative Agent;
(C) a certificate signed by a Company Financial Officer certifying that since the date of the type set forth in Acquisition Agreement there has been no Material Adverse Change;
(vi) a certificate signed by a Company Financial Officer attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transactions, from;
(vii) except as contemplated by Section 3.23(a6.14(a) of the Existing Senior Secured Credit Facilities, evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee, mortgagee and additional insured under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named;
(viii) a Borrowing Request relating to the Borrowings made on the Closing Date; and
(ix) the Intercreditor Agreement, executed and delivered by a duly authorized officer of the applicable Loan Parties and of the Collateral Agent and other agents party thereto;
(b) prior to or substantially simultaneously with the Loans made on the Closing Date, arrangements reasonably satisfactory to the Joint Lead Arrangers shall have been made to pay all fees and expenses (to the extent invoices for such information has expenses have been requested not less than provided at least five (5) Business Days prior to the Effective Closing Date) required to be paid hereunder by the Company or Borrower from the Borrowings made on the Closing Date;
(c) prior to or substantially simultaneously with the Initial Loans made on the Closing Date, the Acquisition shall have been consummated in accordance with the terms of the Acquisition Agreement except for the filing of the merger certificate which shall occur substantially concurrently, without giving effect to any amendments or waivers thereto (excluding any waiver by Lyondell of the conditions set forth in Section 6.3(a)(i) of the Acquisition Agreement) that are materially adverse to the Lenders made without reasonable consent of the Joint Lead Arrangers (such consent not to be unreasonably withheld or delayed), and in compliance with applicable material Laws and regulatory approvals;
(d) all of the conditions precedent included in Article IV of the Senior Secured Credit Facilities have been satisfied or waived and the Senior Secured Credit Facilities remain in full force and effect;
(e) the Company and its subsidiaries shall have outstanding no Financial Indebtedness or Disqualified Equity Interests other than (A) the Initial Loan, (B) the loans under the Senior Secured Credit Facilities, (C) the Existing Notes, (D) Existing Indebtedness (including letters of credit issued and outstanding on the Closing Date), and (E) the Asset Backed Credit Facility, Receivables Financing and Securitization Transactions and (F) liabilities incurred in the ordinary course of business and (G) liabilities disclosed in the Pro Forma Financial Statements, in each case to the extent permitted by Section 5.08;
(f) the Administrative Agent shall have received all documentation and other information mutually agreed to be required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(g) The representations and warranties of Borrower and each other Loan Party contained in Article 3 or any other Loan Document shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated be true and correct in all material respects on and as of the Effective Closing Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to No Default shall exist or would result from such proposed Borrowing or from the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (application of the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrowerproceeds therefrom.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03)requirements hereof.
Appears in 1 contract
Conditions of Lending. The obligations of the 2018 Repricing Term Lenders to make 2018 Repriced Term Loans and of the 2018 2019 Increase Lenders to make 2019 Additional Term Loans, in each case on the 2019 Effective Date, are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 2019 Increase Lenders, collectively) of the following conditions (the date of such satisfaction or waiver, the “2019 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing Lender, each Post-Closing Repricing Lender, each 2018 2019 Increase Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) and (ii) from each of Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or a Repricing Consent)Agreement.
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced Term Loans, all accrued and unpaid interest on their Existing Term Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the 2019 Effective Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Repricing Effective Date,
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the 2019 Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Repricing Effective Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the 2019 Effective Date,
(v) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(dc) The Administrative Agent shall have received, on behalf of itself and the Lenders, the written opinions of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the 2019 Effective Date, (B) addressed to the Administrative Agent and the Lenders on the 2019 Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(ed) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder shall have been paid on or prior to the 2019 Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(fe) The Administrative Agent shall have received on or prior to the date that is three (3) Business Days prior to the 2019 Effective Date all documentation and other information of the type set forth in Section 3.23(a) of the Existing Credit Agreement, to the extent such information has been requested not less than five (5) Business Days prior to the 2019 Effective Date.
(gf) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the 2019 Effective Date, to the effect set forth in Sections 3(b) and 3(d) hereof.
(h) At least three (3) Business Days prior to the 2019 Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 at least one (1) Business Day prior to the 2019 Effective Date (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: First Lien Credit Agreement (Exela Technologies, Inc.)
Conditions of Lending. The obligations of the 2018 Repricing 2024-1 Refinancing Term B-1 Lenders to make 2018 Repriced the 2024-1 Refinancing Term B-1 Loans and of the 2018 Increase Lenders to make Additional Term Loans, in each case on the Effective Date, Date are subject (at the time of or substantially concurrently with the making of such Loans) to the satisfaction (or waiver in accordance with Section 9.09 9.08 of the Existing Credit Agreement or by a majority of the 2018 Repricing Term Lenders and 2018 Increase Lenders, collectivelyAgreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each Cashless Settlement Repricing 2024-1 Refinancing Term B-1 Loan Exchange Lender, each 2024-1 Refinancing Term B-1 Post-Closing Repricing Lender, each 2018 Increase Option Lender and the other Lenders party hereto (that together constitute at least the Required Lenders) each Additional 2024-1 Refinancing Term B-1 Lender and (ii) from each of Holdings, the Borrower Borrowers and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party (or, in the case of the 2024-1 Refinancing Term B-1 Loan Exchange Lenders or 2024-1 Refinancing Term B-1 Post-Closing Option Lenders, a Repricing Consent) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or, in the case of the 2024-1 Refinancing Term B-1 Loan Exchange Lenders or 2024-1 Refinancing Term B-1 Post-Closing Option Lenders, a Repricing Consent).
(b) The Borrower Borrowers shall have paid to the Administrative Agent, for the ratable account of each Existing Term B-1 Lender immediately prior to the Effective Date, simultaneously with the making of the 2018 Repriced 2024-1 Refinancing Term B-1 Loans, all accrued and unpaid interest on their its Existing Term B-1 Loans to, but not including, the Effective Date.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer Responsible Officer of each Loan Party dated the Effective Date.:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Seventeenth Incremental Assumption and Amendment Agreement Effective Date,;
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Seventeenth Incremental Assumption and Amendment Agreement Effective Date,;
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the executive committee of the board of managers or Board of Directors (or equivalent governing body) ), as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement to which such Loan Party is a party and, in the case of the BorrowerBorrowers, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,;
(v) either (x) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan PartyParty or (y) with respect to any Loan Party other than the Borrowers or Holdings, certifying that there have been no changes to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the Seventeenth Incremental Assumption and Amendment Agreement Effective Date; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, the a written opinions opinion of (i) Xxxx, WeissXxxxx, RifkindXxxxxxx, Xxxxxxx & Xxxxxxxx LLP and (ii) Xxxxxxx Xxxxxx L.L.P., in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) All fees and expenses payable under the engagement letter or otherwise in connection with the transactions contemplated hereunder The Administrative Agent shall have been received all fees payable thereto or to any 2024 Arranger, the Co-Manager or any 2024-1 Refinancing Term B-1 Lender on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the 2024-1 Refinancing Term B-1 Loans made hereunder).
(f) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date (a) all documentation and other information of the type set forth in required by Section 3.23(a3.25(a) of the Existing Credit AgreementAgreement and (b) if any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a certification regarding beneficial ownership, in each case, to the extent such information has been requested by the Administrative Agent not less than five (5) three Business Days prior to the Effective Date.
(g) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower Borrower, dated as of the Effective Date, to the effect set forth in Sections 3(b4(b) and 3(d4(d) hereof.
(h) At least three (3) Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall deliver, to each Lender that so requests, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in relation to such Borrower.
(i) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
