Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel: (i) two (2) executed counterparts of this Amendment; (ii) two (2) executed counterparts of the Fee Letter; (iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks; (iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party; (v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification; (vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request; (vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require; (b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and (c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Famous Daves of America Inc), Credit Agreement (Famous Daves of America Inc)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction of shall become effective on the date (the “Amendment No. 1 Effective Date”) upon which the Administrative Agents have received the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent Agents and its legal their counsel:
(ia) two eight (2) executed 8) counterparts of this AmendmentAmendment duly executed and delivered by each Loan Party and Lenders;
(iib) two cash collateral in the amount of £1,080,000 (2the “UK Cash Collateral”) with respect to the outstanding UK Letters of Credit, together with a fully executed counterparts cash collateral agreement and any other documents reasonably required by the Administrative Agents with respect to the outstanding UK Letters of the Fee LetterCredit;
(iiic) two payment in full of all UK Revolving Loans, all accrued and unpaid interest thereon, accrued and unpaid fees and expenses thereon and other Obligations (2other than the US Obligations) executed counterparts of a Supplement Grant of Security Interest in United States Trademarkstogether with accrued and unpaid interest thereon, all as set forth on Schedule 8(c) hereto;
(ivd) such certificates resolutions of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the governing body of each US Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel respect to the Borrowersincrease of the US Revolving Commitment (the “Revolver Increase”), addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) together with a certificate of each Borrower signed certifying that there have been no changes to the constitutive documents of such Borrower since the Second Restatement Date, or if there have been changes, copies certified by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no all such consents, licenses or approvals are so requiredchanges;
(viiie) a certificate signed by a Responsible Officer of each Borrower all Loan Parties (other than UK Borrower) certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Bx) no Default or Event of Default shall exist, have occurred and be continuing or would shall occur as a result from the execution of this Amendment or the effectiveness hereof, such Revolver Increase and (Cy) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or representations and warranties made by each Borrower in the aggregateCredit Agreement and in the other Loan Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, a Material Adverse Effectto the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(ixf) amended and restated Notes for Lenders whose US Revolving Commitment will increase on the Amendment No. 1 Effective Date to the extent requested by such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may requireLender;
(bg) The Borrowers shall have paid four (4) counterparts of an agreement joining each New Subsidiary to the Credit Agreement as a Loan Guarantor and the Security Agreement as a Grantor, duly executed by each New Subsidiary, together with Secretary’s Certificates, constitutive organizational documents and authorizing resolutions of each New Subsidiary and any other documents or information reasonably requested by US Administrative Agent for with respect thereto;
(h) stock or membership certificates (if any), as applicable, together with stock or membership powers executed in blank with respect to the account Equity Interests of the New Subsidiaries and Misco Germany, Inc.;
(i) four (4) counterparts of a fee letter with respect to this Amendment duly executed and delivered by each applicable Lender Loan Party and payment in full of any and all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).described therein;
Appears in 1 contract
Samples: Credit Agreement (Systemax Inc)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is (the date on which all such conditions are satisfied by, the “Effective Date”) are subject to satisfaction the receipt by the Agent and the other Credit Parties of the following conditions precedentfollowing:
(a) The Administrative Agent’s receipt one or more counterparts of this Amendment duly executed and delivered by the Borrower, the Agent and the other Credit Parties;
(b) (i) payment of the following, unless waived fees due and required under the Fee Letters and (ii) reimbursement or payment of the out-of-pocket costs and expenses incurred by the Administrative Agent and the other Credit Parties in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of counsel to the Agent, each of which shall be originals or facsimiles );
(followed promptly by originalsc) unless otherwise specified, each properly duly executed amended and restated Notes to the extent requested by a Responsible Officer Lender;
(i) a copy of the signing Borrowercertificate of formation, each dated the Amendment Closing Date (orincluding all amendments thereto, in the case certified as of certificates of governmental officials, a recent date before by the Secretary of State of the State of Delaware, and a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary or analogous officer of the Borrower, dated the date of this Amendment Closing Dateand certifying (A) that attached thereto is a true and complete copy of the limited liability company agreement or other applicable organizational document as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors (or any duly authorized committee thereof) authorizing the execution and delivery by the Borrower of the Amendment, any other Credit Documents to be executed and delivered on the date hereof and the performance by the Borrower of all of its obligations under this Amendment and such other Credit Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certified certificate of formation furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Amendment and any other document delivered in connection herewith on behalf of the Borrower; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or analogous officer executing the certificate pursuant to (ii) above;
(e) an opinion from legal counsel to the Borrower addressed to the Agent and the other Credit Parties and dated as of the Effective Date, in form and substance satisfactory to the Administrative Agent;
(f) a duly executed certificate from an Authorized Officer certifying to the Agent and its legal counsel:
the other Credit Parties that (i) two (2) executed counterparts of this Amendment;
since December 31, 2019, there has been no Material Adverse Change, (ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained Borrower in Article V of the each Credit Agreement or any other Loan Document, or which Document are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (without duplication of any materiality qualifications otherwise set forth in such representations and warranties), on and as of the Amendment Closing Datedate hereof with the same effect as though made on and as of the date hereof, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) date and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Biii) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, has occurred and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Dateis continuing; and
(cg) Unless waived any other documents or instruments that the Agent may reasonably request, certified by the Administrative Agent, the Borrowers shall have paid all Attorney Costs an officer of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Borrower if so requested.
Appears in 1 contract
Samples: Revolving Credit Agreement (Oncor Electric Delivery Co LLC)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment Amendment, including, without limitation, the amendments provided in Section 2 above, is subject to the satisfaction of the following conditions precedent:precedent (the date on which such conditions are satisfied is herein referred to as the “Third Amendment Effective Date”):
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) telecopies or “.pdf” or “.tif” copies unless otherwise specified, each properly executed by a Responsible Officer of the signing BorrowerLoan Party, each dated the Third Amendment Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Closing Effective Date):
(i) one or more counterparts of this Amendment duly executed and each in form and substance satisfactory to delivered by Borrower, the Guarantors, the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts of this Amendmentthe Lenders;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii1) a certificate of each Borrower signed by a the Secretary, Assistant Secretary or other Responsible Officer either of each Loan Party dated the Third Amendment Effective Date and certifying (A) attaching copies that attached thereto is a copy of the certificate or articles of incorporation or organization or articles of association or other constituting document, including all consentsamendments thereto, licenses of each Loan Party, as certified as of a recent date by the Secretary of State of the state of its organization (or a certification by such Responsible Officer that there have been no amendments to such constituting document since the Second Amendment Effective Date), (B) that attached thereto is a true and approvals required complete copy of the by-laws or other governing document of such Loan Party as in connection with effect on the Third Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or similar governing body of such Loan Party authorizing the execution, delivery and performance byof the Loan Documents, and the validity againstas amended by this Amendment, such Borrower of this Amendment and the other Loan Documents to which it such Person is a partyparty and that such resolutions have not been modified, which consents, licenses rescinded or amended and approvals shall be are in full force and effect, (D) that the certificate or articles of incorporation or organization or other constituting documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate or articles of incorporation or organization furnished pursuant to clause (BA) stating above, (E) that no attached thereto is a true and complete copy of the good standing certificate (or equivalent) of such consentsLoan Party under the laws of its jurisdiction of incorporation, licenses organization or approvals are so requiredformation (or equivalent), as applicable, and (F) to the extent applicable in the Relevant Jurisdiction, as to the incumbency and signature of each officer executing this Amendment, any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and (2) to the extent applicable in the Relevant Jurisdiction, a certificate of another officer as to the incumbency and signature of the Secretary, Assistant Secretary or other Responsible Officer executing the certificate pursuant to clause (1) above;
(viiiiii) a certificate officer’s certificate, dated the Third Amendment Effective Date and signed by a Responsible Financial Officer of each Borrower certifying that the Borrower, confirming compliance with the conditions precedent set forth in this Section 3.
(Ab) the All representations and warranties of the Borrowers by any Loan Party contained in Article V of this Amendment, in the Credit Agreement or and in any other Loan Document, or which Document are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and in all material respects (without duplication of any materiality qualifier contained therein) as of the Third Amendment Closing Effective Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties specifically refer to an earlier date, in which case they shall be were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date).
(c) The Administrative Agent shall have received payment in full in cash of all fees, costs and except that for purposes hereof, expenses due and payable on the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished date hereof pursuant to clauses (a) and (b), respectively, of Section 6.01 9.05 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent, unless specifically waived in writing by the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received copies of each of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselduly executed by each Person party thereto:
(i) two (2) executed counterparts of this Amendment;
(ii) two (2) executed counterparts the Amended and Restated Security Agreement dated as of the Fee LetterEffective Date, by and among the Borrowers and the Collateral Agent;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarksamendments to the Servicing Agreement and Backup Servicing Agreement, by and among each Person party thereto;
(iv) such the OppWin Card Purchase Agreement dated as of the Effective Date, by and between New Seller and New Borrower;
(v) SPE VII Collection Account Control Agreement dated as of the Effective Date, by and among, New Borrower, Collateral Agent and Xxxxx Fargo Bank, National Association;
(vi) the First Electronic Call Letter and First Electronic Program Agreements;
(w) each Organizational Document executed and delivered by the Company and each Borrower, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, (x) signature and incumbency certificates of the officers of the Company and each Borrower, (y) resolutions of the board of directors, board of managers, managing member or other action, incumbency certificates and/or other certificates similar governing body of Responsible Officers of the Company and each Borrower as approving and authorizing the Administrative Agent may require evidencing the identityexecution, authority delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Credit Documents executed to be entered into in connection herewith to which such Borrower it is a party, as applicable, certified as of the Effective Date by its secretary or an assistant secretary or its director of operations as being in full force and effect without modification or amendment, and (z) a good standing certificate from the applicable Governmental Authority of the Company’s and each Borrower’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Effective Date;
(vviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formedfavorable written opinions of DLA Piper LLP (US), and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or counsel for the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each LenderCredit Parties, as to (i) corporate and enforceability matters, (ii) the creation and perfection of the security interests in favor of the Collateral Agent in the Collateral under the Collateral Documents, (iii) true sale and nonconsolidation matters, and (iv) such other matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request, dated as of the Effective Date;
(viiix) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of the Collateral Agent shall have received certificates from the Company’s insurance broker, or other evidence satisfactory to it that all consents, licenses and approvals insurance required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it be maintained hereunder is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) the results of a certificate signed recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of the Borrowers in Delaware and the Company in Delaware, together with copies of all such filings disclosed by such search; and
(xi) the LLC Interest Certificate evidencing 100% of the Company’s ownership of the New Borrower along with a Responsible Officer blank transfer power of each Borrower certifying that such LLC Interest Certificate.
(Ab) After giving effect to the terms of this Amendment, (i) the representations and warranties of contained herein and in the Borrowers contained in Article V of Amended Credit Agreement, the Amended Fee Letter, the Amended Limited Guaranty, the Amended Subordination Agreement and the other Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Documents shall be true and correct in all material respects (except for such representations and warranties already qualified by materiality which shall be true and correct in all respects) on and as of the Amendment Closing Date, Effective Date (except to the extent that such representations and warranties specifically refer they expressly relate to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) time); and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Bii) no Default or Event of Default shall existhave occurred and be continuing.
(c) Borrowers shall have paid to Agent, or would result from for the execution benefit of this Amendment or the effectiveness hereofLenders, an extension fee in an amount equal to $187,500 in immediately available funds, which extension fee shall be fully earned and (C) that there has been no event or circumstance since nonrefundable on the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;hereof.
(ixd) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for Agents and the account of each applicable Lender Lenders, as applicable, all fees other amounts required to be paid hereunder or under pursuant to the Fee Letter by Borrowers Amended Credit Agreement on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid Effective Date and all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)outstanding Permitted Expenses.
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of precedent that DST Systems and the Agent shall have received the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each indicated) dated the Amendment Closing Date (ordate hereof, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to DST Systems and the Administrative Agent and its legal counselAgent:
(ia) two certified copies of the resolutions (2or similar authorization) executed counterparts of the sole manager of the New Seller approving this Amendment and certified copies of all documents evidencing other necessary limited liability company action and governmental approvals, if any, with respect to this Amendment;
(iib) two (2) executed counterparts a certificate of the Fee Letter;
(iii) two (2) executed counterparts Secretary or Assistant Secretary of a Supplement Grant the New Seller certifying the names and true signatures of Security Interest in United States Trademarks;
(iv) such certificates the officers of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof New Seller authorized to act as a Responsible Officer in connection with sign this Amendment and the other Loan Documents executed in connection herewith documents to which such Borrower is a partybe delivered by it hereunder;
(vc) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in a copy of good standing certificate for the New Seller issued within thirty (30) days prior to the date hereof by the Secretary of State of the state of formation of the New Seller and qualified to engage in the state where the New Seller’s principal place of business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationis located;
(vid) copies of proper financing statements (Form UCC1) to be filed under the UCC on or before the date of this Agreement in all jurisdictions as may be necessary or, in the opinion of the Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the transfer by the New Seller to DST Systems of the Receivables;
(e) copies of proper UCC amendment statements (Form UCC3), if any, necessary to effect the release of all security interests and other rights of any Person in the Receivables of each New Seller, and the related Contracts and Related Security;
(f) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel search report provided in writing to the BorrowersAgent, addressed (i) listing all effective financing statements that name the New Seller as debtor and that are filed in the jurisdiction in which filing was made pursuant to subsection (d) above and in such other jurisdiction that the Administrative Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the financing statements described in subsection (d) above) shall cover any Receivables, and each Lender(ii) listing all tax liens and judgment liens (if any) filed against the New Seller in the jurisdictions described above;
(g) a copy of the executed Amendment; and
(h) such other agreements, as to such matters concerning the Loan Parties instruments, certificates, opinions and this Amendment and the Loan Documents other documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
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Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts of this Amendment;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two a revised Compliance Certificate as of the end of the fourth fiscal quarter of fiscal year 2013 evidencing compliance with the financial covenants set forth in Article XIV of the Credit Agreement (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarksincluding the amended Section 14.04 set forth above);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;; and
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
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Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction of shall become effective on the date upon which the following conditions precedentprecedent have been satisfied:
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative AgentAgent has received a copy of this Amendment duly executed and delivered by each Loan Party and the Lenders (which may be sent by electronic transmission for purposes of meeting this condition), each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
, with four (i4) two (2) executed original counterparts of this Amendmentto be promptly provided to Administrative Agent;
(iib) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) has received a certificate of each Borrower signed Loan Party, dated the First Amendment Effective Date and executed by a Responsible Officer either its Secretary or Assistant Secretary, which shall (A) attaching copies certify the resolutions of all consentsits Board of Directors, licenses and approvals required in connection with members or other body authorizing the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event identify by name and title and bear the signatures of Default shall exist, or would result from the execution Financial Officers and any other officers of such Loan Party authorized to sign this Amendment or the effectiveness hereofand each other Loan Document, and (C) certifying that there has have been no event or circumstance changes to the constitutive documents of such Loan Party since the date Closing Date, or if there have been changes, copies certified by such Loan Party of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectall such changes;
(ixc) such other assurances, certificates, documents, consents or opinions as the Administrative Agent has received results of a recent lien searches in each jurisdiction where the Loan Parties are organized and in such other locations that the Administrative Agent deems reasonably may requireappropriate, and such search results shall be satisfactory to the Administrative Agent;
(bd) The Borrowers shall have paid to the Administrative Agent for has received (i) at least five (5) days prior to the account First Amendment Effective Date, all documentation and other information regarding the Borrowers requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in writing of the Borrowers at least ten (10) days prior to the Effective Date, and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the First Amendment Effective Date, any Lender that has requested, in a written notice to the Borrowers at least ten (10) days prior to the Effective Date, a Beneficial Ownership Certification in relation to each applicable Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender all fees required of its signature page to this Amendment, the condition set forth in this clause (ii) shall be deemed to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Datesatisfied); and
(ce) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs legal fees and disbursements of the Administrative Agent Xxxxxxxx Xxxxxx Xxxx & Hessen LLP, to the extent invoiced at least two Business Days prior to or on the Amendment Closing No. 1 Effective Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
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Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction shall not become effective until all of the following conditions precedentprecedent shall have been satisfied in the sole discretion of Agent or waived by Agent:
(a) The Administrative Agent’s receipt Agent shall have received fully executed counterparts to this Amendment,
(b) Agent shall have received (i) a certificate of each Loan Party, dated the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly Effective Date and executed by a secretary, assistant secretary, director or other Responsible Officer thereof, which shall (ii) certify that (x) attached thereto is a true and complete copy of the signing Borrowercertificate or articles of incorporation, formation or organization of such Loan Party which in the case of a US Loan Party shall be certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon or, as applicable, that no change to its certificate or articles of incorporation, formation or organization has occurred since the Closing Date, (y) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party (or in respect of each dated UK Loan Party, its articles of association), together with all amendments thereto as of the Amendment Effective Date and such by-laws or operating, management, partnership or similar agreement or articles of association are in full force and effect or, as applicable, that no change to its by-laws or operating, management, partnership or similar agreement has occurred since the Closing Date and (orz) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution, delivery and performance of this Amendment and the other applicable Loan Documents, and, in the case of certificates the Borrowers, the borrowings and other obligations thereunder, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and a resolution of governmental officialsthe shareholders of each UK Loan Party approving the execution of this Amendment and the other applicable Loan Documents and the taking of any action required or permitted pursuant thereto and (iii) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party signing this Amendment and the other applicable Loan Documents to which such Loan Party is a party on the Effective Date and (iv) a good standing (or equivalent) certificate as of a recent date before for such US Loan Party from the Amendment Closing Daterelevant authority of its jurisdiction of organization,
(c) Agent shall have received a customary written opinion of (i) White & Case, LLP, as U.S. counsel to the Loan Parties, (ii) Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, as local Colorado counsel to the US Loan Parties, and each (iii) White & Case LLP, as UK counsel (with respect to existence and authority of the UK Loan Parties) to the Loan Parties,
(d) Agent shall have received the results of (i) a Lien search (including a search as to litigation, judgments, executions, bankruptcy and insolvency, tax and intellectual property matters), in form and substance reasonably satisfactory thereto, made against the Loan Parties under the UCC (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the UCC should be made to evidence or perfect security interests in any Collateral of such Loan Party and, where applicable, in each jurisdiction in which federal tax liens against such Loan Party should be filed, in each case indicating among other things that the Collateral of each such Loan Party are free and clear of any Lien (except for Permitted Liens) and (ii) satisfactory UK company and/or other searches in respect of each UK Loan Party,
(e) Since April 30, 2022, there shall not have occurred a Material Adverse Effect,
(f) Borrowers shall have Excess Availability of at least $100,000,000 after giving effect to the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts terms of this Amendment;
(ii) two (2) executed counterparts , and the payment of all fees and expenses required to be paid by Borrowers on the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Effective Date under this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;Documents,
(vg) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers each Loan Party or its Subsidiaries contained in Article V of the Credit Agreement or any in the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Amendment Closing Datedate hereof, as though made on and as of such date (except to the extent that such representations and warranties specifically refer relate solely to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections ),
(a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Bh) no Default or Event of Default shall exist, or would result from have occurred and be continuing after giving effect to the execution terms of this Amendment or the effectiveness hereofAmendment, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(ci) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent Lender Group Expenses to the extent invoiced at least three (3) Business Days prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or Effective Date unless otherwise agreed to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction shall not become effective until the date on which all of the following conditions precedent:precedent shall have been satisfied in the sole discretion of Agent or waived by Agent (the “Amendment No. 2 Effective Date”):
(a) The Administrative Agent’s receipt Agent shall have received this Amendment fully executed in a sufficient number of the following, unless waived by the Administrative Agent, each of which counterparts for distribution to all parties.
(b) Agent shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each have received evidence in form and substance satisfactory to Agent that the Administrative Agent Borrower has received substantially concurrently herewith at least $17,500,000 from the issuance of Equity Interests of the Administrative Borrower to each Permitted Holder and its legal counsel:Chrysalis Ventures pursuant to the terms of that certain Investment Agreement, dated as of the date hereof, by and among Administrative Borrower, each Permitted Holder and Chrysalis Ventures, and on terms and conditions satisfactory to the Agent.
(ic) two (2) executed counterparts of this Amendment;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative The Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update its designee) shall have received a retainer in the amount of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required $100,000 in connection with the executionengagement of the Agent’s Financial Advisor (as defined below) on or prior to the date hereof.
(d) On or prior to the Amendment No. 2 Effective Date, delivery the Agent shall have received an amount equal to $623,552.79 as a repayment of the outstanding Revolving Loans.
(e) The Agent shall have received (i) a rolling 13-week cash flow forecast of the Borrowers and performance bytheir Subsidiaries for the succeeding thirteen (13) week period as of the Amendment No. 2 Effective Date, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiiii) a certificate signed by the chief financial officer of the Administrative Borrower to the effect that such cash flow forecast is true and correct, in each case, in form, substance and in such detail as is reasonably satisfactory to the Agent.
(f) The Agent shall have received a Responsible Officer detailed report in form and substance reasonably satisfactory to Agent regarding the Borrowers’ and their Subsidiaries’ cash and Cash Equivalents, including a list of all accounts with account numbers and identifying all accounts which are subject to Control Agreements, and an indication of which accounts constitute Qualified Cash and which accounts do not constitute Qualified Cash, in each Borrower certifying that case, as of the Amendment No. 2 Effective Date.
(Ag) the The representations and warranties set forth herein and in the Loan Documents (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall date hereof) must be true and correct on and as of the Amendment Closing Date, in all material respects (except to the extent that such representations materiality qualifier shall not be applicable to any portion of any representation and warranties specifically refer to an earlier date, warranty that is already qualified or modified by materiality in which case they the text thereof).
(h) Agent shall have received all other documents and legal matters in connection with the transactions contemplated by this Amendment and such documents shall have been delivered or executed or recorded and shall be true in form and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed substance satisfactory to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Connecture Inc)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowers;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(viii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viiv) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(viiv) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivi) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required hereunder to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The Notwithstanding any provisions to the contrary set forth in this Amendment, the effectiveness of this Amendment is subject to expressly conditioned upon the satisfaction of each of the following conditions precedentfollowing:
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which US Agent (or its counsel) shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
have received (i) two (2) executed counterparts of this Amendment;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of from each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer party hereto either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower a counterpart of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, executed on behalf of such party or (B) stating written evidence satisfactory to the US Agent (which may include facsimile or other electronic transmission of a signed signature page of this Amendment) that no such consentsparty has signed a counterpart of this Agreement, licenses and (ii) either (A) a counterpart of that certain Amended and Restated Guaranty and Security Agreement of even effective date herewith executed on behalf of each US Credit Party and the US Agent or approvals are so required(B) written evidence satisfactory to the US Agent (which may include facsimile or other electronic transmission of a signed signature page thereof) that each such party has signed a counterpart of such Amended and Restated Guaranty and Security Agreement;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (Ab) the representations and warranties US Agent shall have received a good standing certificate for each Credit Party from its jurisdiction of organization or the Borrowers contained substantive equivalent available in Article V the jurisdiction of organization for each Credit Party from the Credit Agreement or any other Loan Document, or which are contained appropriate governmental officer in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections jurisdiction;
(a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Bc) no Default or Event of Default shall exist, or would result from have occurred and be continuing as of the execution effective date of this Amendment; and
(d) all fees and expenses due and payable by the Borrowers under the terms of the fee letter entered into between the US Agent and the Borrowers in connection with the amendment and modification of the Credit Agreement evidenced by this Amendment or the effectiveness hereofshall have been paid in full, and (C) that there has been no event or circumstance since the date of Agents and the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers Lenders shall have paid to the Administrative Agent for the account of each applicable Lender received all fees required to be paid hereunder paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or under before the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs effective date of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)this Amendment.
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Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to shall be effective upon the satisfaction or waiver of the following conditions precedentfollowing:
(a) The Administrative Agent’s receipt all of the followingrepresentations and warranties of the Credit Parties under Article 4 of the Credit Agreement which are made as of the date hereof pursuant to Section 5(a) hereof, unless waived shall be true and correct in all material respects;
(b) receipt by the Administrative AgentAgent of one or more counterparts of this Amendment duly executed and delivered by the Borrower, Required Lenders and the Administrative Agent and confirmed by each of which shall be originals or facsimiles Guarantor;
(followed promptly by originalsc) unless otherwise specified, each properly executed by a Responsible Officer all conditions precedent under Section 3.3 of the signing Credit Agreement, including, but not limited to, receipt by the Administrative Agent of any documents required under such Section; provided however, that notwithstanding any provision to the contrary in the Credit Agreement, the Administrative Agent and the Lenders hereby agree and acknowledge that the Borrower may pay a fee directly to U.S. Bank National Association in consideration of the August 2008 Facility Increase in an aggregate amount not to exceed $50,000;
(d) receipt by the Administrative Agent of the duly executed signature pages of the Borrower, each dated the Amendment Closing Date (or, Lender participating in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) August 2008 Facility Increase and each other Lender with Revolving Loans outstanding as of the date hereof to those certain assignments entered into in accordance with Section 2.1(b)(iv) of the Credit Agreement, pursuant to which, after giving effect to such assignments, the outstanding Revolving Loans of the Lenders shall be as set forth in Annex A attached hereto;
(e) receipt by the Administrative Agent of a Mortgaged Property Report in form and substance satisfactory to the Administrative Agent and its legal counsel:Agent; and
(if) two (2) executed counterparts receipt of this Amendment;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease documents or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as instruments that the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed , certified by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties an officer of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Borrower if so requested.
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Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of precedent that DST Systems and the Agent shall have received the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each indicated) dated the Amendment Closing Date (ordate hereof, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to DST Systems and the Administrative Agent and its legal counselAgent:
(ia) two certified copies of the resolutions (2or similar authorization) executed counterparts of the directors of each New Seller approving this Amendment and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment;
(iib) two (2) executed counterparts a certificate of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions Secretary or other action, incumbency certificates and/or other certificates of Responsible Officers Assistant Secretary of each Borrower as New Seller certifying the Administrative Agent may require evidencing names and true signatures of the identity, authority and capacity officers of each Responsible Officer thereof such New Seller authorized to act as a Responsible Officer in connection with sign this Amendment and the other Loan Documents executed in connection herewith documents to which such Borrower is a partybe delivered by it hereunder;
(vc) a copy of good standing certificate for each New Seller issued within thirty (30) days prior to the date hereof by the Secretary of State of the state of formation of such documents New Seller and certifications the state where such New Seller’s principal place of business is located;
(d) copies of proper financing statements (Form UCC1) to be filed under the UCC on or before the date of this Agreement in all jurisdictions as may be necessary or, in the Administrative Agent may reasonably require opinion of the Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions to evidence that perfect the transfer by each Borrower is duly organized or formedNew Seller to DST Systems of the Receivables (and assigned, of record, to the Agent);
(e) copies of proper UCC amendment statements (Form UCC3), if any, necessary to effect the release of all security interests and other rights of any Person in the Receivables of each New Seller, and the related Contracts and Related Security;
(f) a search report provided in writing to the Agent, (i) listing all effective financing statements that each Borrower executing name either New Seller as debtor and that are filed in the jurisdiction in which filing was made pursuant to subsection (d) above and in such other jurisdiction that the Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the financing statements described in subsection (d) above) shall cover any Receivables, and (ii) listing all tax liens and judgment liens (if any) filed against such New Seller in the jurisdictions described above;
(g) fully-executed copies of this Amendment and any other Loan Documents executed in connection herewith is validly existingof Amendment No. 4 to Amended and Restated Receivables Purchase Agreement, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation dated as of properties or the conduct of its business requires such qualification;date hereof; and
(vih) a favorable opinion or such other agreements, instruments, certificates, opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents other documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction of the following conditions precedentprecedent that DST Systems and the Agent shall have received the following, each (unless otherwise indicated) dated the date hereof, and in form and substance satisfactory to DST Systems and the Agent:
(a) The Administrative Agent’s receipt Certified copies of the followingresolutions (or similar authorization, unless waived if not a corporation) of the Board of Directors (or similar governing body or Persons, if not a corporation) of each New Seller approving this Amendment and certified copies of all documents evidencing other necessary corporate or limited liability company action, as the case may be, and governmental approvals, if any, with respect to this Amendment. One such certificate will be acceptable for any number of such Persons having identical authorizations.
(b) A certificate of the Secretary or Assistant Secretary of each New Seller certifying the names and true signatures of the officers of such New Seller authorized to sign this Amendment and the other documents to be delivered by it hereunder. One such certificate will be acceptable for any number of such Persons having identical authorized officers.
(c) Copy of good standing certificate for each New Seller issued within thirty (30) days prior to the date hereof by the Administrative Agent, each Secretary of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer State of the signing Borrower, each dated state of formation of the Amendment Closing Date New Seller and the state where the New Seller’s principal place of business is located.
(d) Copies of proper financing statements (Form UCC1) to be filed under the UCC on or before the date of this Agreement in all jurisdictions as may be necessary or, in the case opinion of certificates the Agent, desirable under the UCC or any comparable law of governmental officials, all appropriate jurisdictions to perfect the transfer by each New Seller to DST Systems of the Receivables.
(e) Copy of a recent date proper UCC amendment statement (Form UCC3) to be filed under the UCC on or before the Amendment Closing Datedate of this Agreement in all jurisdictions as may be necessary or, in the opinion of the Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions to reflect the name change to DST Global Solutions North America, LLC.
(f) Copies of proper UCC amendment statements (Form UCC3) necessary to effect the release of all security interests and other rights of any Person in the Receivables of each New Seller, and the related Contracts and Related Security.
(g) Search report provided in writing to the Agent, (i) listing all effective financing statements that name the New Seller as debtor and that are filed in the jurisdiction in which filing was made pursuant to subsection (d) above and in such other jurisdiction that the Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the financing statements described in subsection (d) above) shall cover any Receivables, and (ii) listing all tax liens and judgment liens (if any) filed against the New Seller in the jurisdictions described above;
(h) Favorable opinions of counsel to the New Sellers, as applicable, as to such matters and in form and substance satisfactory to the Administrative Agent and its legal counselincluding, without limitation, the following:
(i) two each New Seller is (2A) executed counterparts organized, existing and in good standing under the laws of this Amendment;
its jurisdiction of organization, with all necessary power and authority to own its properties and conduct its business as currently conducted and (iiB) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized qualified to act do business as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existingforeign limited liability company, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or in which the conduct of its business requires such qualification;
(viii) a favorable opinion each New Seller has or opinions had at all relevant times, full power, authority and legal right to exercise, deliver and perform its obligations under the Agreement; and has or had at all relevant times full power, authority and legal right to originate, own and transfer the Receivables and the other property transferred by it to DST Systems;
(or an update of any existing opinion or opinions given on or about iii) the Closing Date) of counsel to the BorrowersAgreement, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents document related hereto to which it a New Seller is a partyparty has been duly authorized, which consentsexecuted and delivered by such Person and is a valid and binding agreement, licenses and approvals shall be enforceable against such Person in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Dateaccordance with its respective terms, except to the extent that enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity);
(iv) the transfer of the Receivables by each New Seller to DST Systems pursuant to the Agreement, the compliance by such representations New Seller with all of the provisions of the Agreement and warranties specifically refer the consummation of the transactions contemplated the Agreement, and each other document contemplated hereby or thereby to an earlier datewhich such New Seller is a party will not (A) conflict with or result in a breach of any of the terms or provisions of, in or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which case they shall be true and correct as such New Seller is a party or by which such New Seller is bound or to which any of the property or assets of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit AgreementNew Seller is subject, (B) no Default result in any violation of the provisions of any order known to such counsel of any court or Event governmental agency or body having jurisdiction over such New Seller or any of Default shall exist, its properties or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date result in any violation of the Audited Financial Statements that has had provisions of the articles of association, other formation documents or could be reasonably expected the operating agreement of such New Seller or to havecounsel’s knowledge any statute or any rule or regulation of any governmental agency or body having jurisdiction over such New Seller or any of its properties;
(v) no authorization, either individually approval, consent or order of, or filing with, any court or governmental authority or agency is required by any New Seller in connection with the consummation of the transactions contemplated in the aggregateAgreement or any other document contemplated hereby or thereby to which such New Seller is a party, except such as have been obtained;
(vi) to the best of such counsel’s knowledge and information without independent inquiry, there are no legal or governmental proceedings pending or threatened (A) asserting the invalidity of the Existing Agreement or any other document contemplated hereby or thereby to which any New Seller is a Material Adverse Effectparty, (B) seeking to prevent the consummation by any New Seller of any of the transactions contemplated by this Amendment, the Existing Agreement or any other document contemplated hereby or thereby to which such New Seller is a party or (C) which might materially adversely affect the rights of DST Systems hereunder or under the Existing Agreement;
(vii) the provisions of the Agreement are effective to create a valid security interest in the Receivables of each New Seller and the proceeds thereof in favor of DST Systems;
(viii) no New Seller is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid existence of a “true sale” of the Receivables from the New Seller to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or DST Systems under the Fee Letter by Borrowers on the Amendment Closing DateAgreement; and
(cx) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs inapplicability of the Administrative Agent doctrine of substantive consolidation to the extent invoiced prior to or on New Seller and each of the Amendment Closing Dateowners of the membership interest of the New Seller;
(i) A copy of the executed Amendment; and
(j) Such other agreements, plus such additional amounts of Attorney Costs instruments, certificates, opinions and other documents as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Agent may reasonably request.
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s Lender's receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing BorrowerLoan Party, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and its legal counsel:
(i) two (2) executed counterparts of this AmendmentAmendment and the First Amendment to Promissory Note of even date herewith;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower Loan Party is a party;
(viii) such documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Borrower Loan Party is duly organized or formed, and that Borrower and each Borrower executing this Amendment and any other Loan Party executing any of the Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viiv) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the BorrowersLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit C to the Loan Agreement and such other matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent Lender may reasonably request;
(viiv) a certificate of each Borrower signed by a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower Loan Party of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, effect or (B) stating that no such consents, licenses or approvals are so required;
(viiivi) a certificate signed by a Responsible Officer of each Borrower certifying that (A) that the conditions specified in Sections 4(c) and (d) below have been satisfied, and (B) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) such other assurances, certificates, documents, consents or opinions as Lender reasonably may require.
(b) Unless waived by Lender, Borrower shall have paid all Attorney Costs of Lender to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs 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 Borrower and Lender).
(c) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections .
(ad) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no No Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)proposed Additional Advance.
Appears in 1 contract
Samples: Loan Agreement (Noble Romans Inc)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment Amendment, including, without limitation, the amendments provided in Section 1 above, is subject to the satisfaction of the following conditions precedent:precedent (the date on which such conditions are satisfied is herein referred to as the “Amendment No. 1 Effective Date”):
(a) The Administrative Agent’s receipt of the following, unless waived by following in form and substance acceptable to the Administrative AgentAgent and the Lenders, each of which shall be originals or facsimiles (followed promptly by originals) telecopies or “.pdf” or “.tif” copies unless otherwise specified, each properly executed by a Responsible Officer of the signing BorrowerLoan Party, each dated the Amendment Closing No. 1 Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing No. 1 Effective Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:):
(i) two (2) executed one or more counterparts of this AmendmentAmendment duly executed and delivered by the Borrower, the Guarantors, the Administrative Agent, the Collateral Agent and the Lenders;
(ii) two (2) executed counterparts a true and complete copy of the Fee Lettergood standing certificate (or equivalent) of each Loan Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent);
(iii) two officer’s certificate, dated as of the Amendment No. 1 Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in clauses (2c) executed counterparts and (d) of a Supplement Grant of Security Interest in United States Trademarks;this Section 3; and
(iv) a certificate for each Loan Party, dated as of the Amendment No. 1 Effective Date and signed by such certificates of resolutions Loan Party’s secretary or assistant secretary, managing member, general partner or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may appropriate person reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed acceptable to the Administrative Agent and each LenderAgent, as applicable, which shall certify:
(1) that attached thereto are resolutions, that have not been amended, supplemented, rescinded or modified, of each such Loan Party’s board of directors (or other managing body, in the case of a Loan Party that is not a corporation) then in full force and effect expressly and specifically authorizing, to the extent relevant, all aspects of this Amendment applicable to such matters concerning the Loan Parties Party and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment (and the other performance of the Loan Documents Agreement), in each case to which it be executed by such Loan Party; and
(2) that either (A) attached thereto is a partycopy of such Loan Party’s Organization Documents as of the Amendment No. 1 Effective Date, which consentsincluding all amendments, licenses modifications and approvals shall be supplements thereto, further certified, in full force and effectthe case of certificate or articles of incorporation or organization or articles of association or other similar constituting document, as of a recent date by the Secretary of State of the state of organization of such Loan Party or (B) stating that no such consentsLoan Party’s Organizational Documents have not been amended, licenses repealed, modified or approvals are so required;restated since the delivery of the certificate described in Section 5.05 of the Existing Loan Agreement on the Closing Date.
(viiib) a certificate signed Receipt by a Responsible Officer the Administrative Agent of each Borrower certifying that (A) the representations all reasonable and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true documented fees and correct on and expenses due as of the Amendment Closing No. 1 Effective Date in accordance with the terms of the Loan Agreement (to the extent invoiced one (1) Business Day prior to the Amendment No. 1 Effective Date).
(c) All representations and warranties by any Loan Party contained in this Amendment, in the Loan Agreement and in any other Loan Document are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the Amendment No. 1 Effective Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties specifically refer to an earlier date, in which case they shall be were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date).
(d) At the time of and immediately after such Amendment No. 1 Effective Date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, have occurred and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)continuing.
Appears in 1 contract
Samples: Loan Agreement (Mimedx Group, Inc.)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent, unless specifically waived in writing by the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received copies of each of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselduly executed by each Person party thereto:
(i) two (2) executed counterparts of this Amendment;
(ii) two each Note requested by a Lender on or prior to the Effective Date;
(2iii) executed counterparts of the Fee Letter;
(iiiiv) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarksthe Third Amendment to Backup Servicing Agreement by and among Administrative Agent, Borrowers, Company and Backup Servicer;
(ivv) such evidence that the Ares Borrower has delivered Ares written notice of its irrevocable intent to repay in full and terminate the Ares Credit Facility five (5) Business Days following the date hereof;
(vi) (w) each Organizational Document executed and delivered by each Borrower, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, (x) signature and incumbency certificates of the officers of each Borrower, (y) resolutions of the board of directors, board of managers, managing member or other action, incumbency certificates and/or other certificates of Responsible Officers similar governing body of each Borrower as approving and authorizing the Administrative Agent may require evidencing the identityexecution, authority delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Credit Documents executed to be entered into in connection herewith to which such Borrower it is a party, as applicable, certified as of the Effective Date by its secretary or an assistant secretary or its director of operations as being in full force and effect without modification or amendment, and (z) a good standing certificate from the applicable Governmental Authority of each Borrower’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Effective Date;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formedfavorable written opinions of DLA Piper LLP (US), and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or counsel for the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each LenderCredit Parties, as to (i) corporate and enforceability matters, (ii) the creation and perfection of the security interests in favor of the Collateral Agent in the Collateral under the Collateral Documents, and (iii) such other matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate , dated as of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;Effective Date; and
(viii) the results of a certificate signed recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of the Borrowers in Delaware and the Company in Delaware, together with copies of all such filings disclosed by a Responsible Officer such search.
(b) After giving effect to the terms of each Borrower certifying that this Amendment, (Ai) the representations and warranties of contained herein and in the Borrowers contained in Article V of the Amended Credit Agreement or any and the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Credit Documents shall be true and correct in all material respects (except for such representations and warranties already qualified by materiality which shall be true and correct in all respects) on and as of the Amendment Closing Date, Effective Date (except to the extent that such representations and warranties specifically refer they expressly relate to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) time); and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Bii) no Default or Event of Default shall existhave occurred and be continuing.
(c) Borrowers shall have paid to Agent, for the benefit of the Lenders all amounts required to be paid on or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since prior to the date of hereof pursuant to the Audited Financial Statements that has had or could Fee Letter, in immediately available funds, which extension fee shall be reasonably expected to have, either individually or in fully earned and nonrefundable on the aggregate, a Material Adverse Effect;date hereof.
(ixd) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for Agents and the account of each applicable Lender Lenders, as applicable, all fees other amounts required to be paid hereunder or under pursuant to the Fee Letter by Borrowers Amended Credit Agreement on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid Effective Date and all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)outstanding Permitted Expenses.
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Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment, including, without limitation, the amendments provided in Section 3 above and the effectiveness of the First Amendment Incremental Facilities, is subject to the satisfaction of the following conditions precedent:precedent (the date on which such conditions are satisfied is herein referred to as the “First Amendment Effective Date”):
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) telecopies or “.pdf” or “.tif” copies unless otherwise specified, each properly executed by a Responsible Officer of the signing BorrowerLoan Party, each dated the First Amendment Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the First Amendment Closing Effective Date):
(i) one or more counterparts of this Amendment duly executed and delivered by Borrower, the Guarantors, the Administrative Agent and the Lenders;
(ii) (1) a certificate of the Secretary, Assistant Secretary or other Responsible Officer of each Loan Party dated the First Amendment Effective Date and certifying (A) that attached thereto is a copy of the certificate or articles of incorporation or organization or articles of association or other constituting document, including all amendments thereto, of each Loan Party, as certified as of a recent date by the Secretary of State of the state of its organization, (B) that attached thereto is a true and complete copy of the by-laws or other governing document of such Loan Party as in effect on the First Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or similar governing body of such Loan Party authorizing the execution, delivery and performance of the Loan Documents, as amended by this Amendment, to which such Person is a party and, in the case of the Borrower, the additional borrowings contemplated by this Amendment, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (D) that the certificate or articles of incorporation or organization or other constituting documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate [Amendment No. 1 to Credit Agreement (Incremental Term Loan) Page 7 of 20 or articles of incorporation or organization furnished pursuant to clause (A) above, (E) that attached thereto is a true and complete copy of the good standing certificate (or equivalent) of such Loan Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, and (F) to the extent applicable in the Relevant Jurisdiction, as to the incumbency and signature of each officer executing this Amendment, any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and (2) to the extent applicable in the Relevant Jurisdiction, a certificate of another officer as to the incumbency and signature of the Secretary, Assistant Secretary or other Responsible Officer executing the certificate pursuant to clause (1) above;
(iii) written opinions in form and substance reasonably satisfactory to the Administrative Agent of Xxxxxxx and its legal counsel:
(i) two (2) executed counterparts of this Amendment;
(ii) two (2) executed counterparts of Xxxxxx LLP, counsel for the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existingParties, in good standing each case, (i) dated as of the First Amendment Effective Date and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viii) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lenderthe Lenders;
(iv) a solvency certificate executed by a Financial Officer of the Borrower, as in form and substance reasonably acceptable to such matters concerning the Loan Parties and this Amendment Administrative Agent, to the effect that the Borrower and the Subsidiaries, on a consolidated basis immediately after giving effect to this Amendment, the First Amendment Incremental Facilities and the other transactions contemplated hereby, are Solvent as of the First Amendment Effective Date;
(v) a Borrowing Request and letter of direction from Borrower addressed to the Administrative Agent, on behalf of itself and the Lenders, with respect to the disbursement on the First Amendment Effective Date of the proceeds of the First Amendment Incremental Term Loan;
(vi) certified copies of bring-down UCC, tax and judgment lien searches, intellectual property searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Documents Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or, solely with respect to tax and judgment lien searches, maintains its principal place of business, and accompanied by evidence reasonably satisfactory to the Administrative Agent may reasonably request;
that the Liens indicated in any such financing statement (viior similar document) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall would be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V permitted under Section 6.02 of the Credit Agreement or have been released or terminated; and
(vii) officer’s certificate, dated the First Amendment Effective Date and signed by a Financial Officer of the Borrower, (A) confirming compliance with the conditions precedent set forth in Sections 4.01(b) and (c) of the Credit Agreement and this Section 4, and (B) demonstrating that, both before and after giving pro forma effect to the funding of the First Amendment Incremental Term Loan, as if such funding had occurred as of the most recently ended fiscal quarter for which financial statements have been (or are required to have been) delivered pursuant to Sections 5.04(a) or (b), the Loan Parties are and would be in compliance with the covenants set forth in Sections 6.10(c) and (d) of the Credit Agreement.
(b) All representations and warranties by any Loan Party contained in this Amendment, in the Credit Agreement and in any other Loan Document, or which Document are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and in all material respects (without duplication of any materiality qualifier contained therein) as of the First an Amendment Closing Effective Date, except to the extent that such representation or warranty expressly relates to earlier date (in which event such representations and warranties specifically refer to an earlier date, in which case they shall be were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date).
(c) There shall be no order, and except that for purposes hereof, injunction or decree of any Governmental Authority restraining or prohibiting the representations and warranties contained in subsections (a) and (b) of Section 5.05 funding of the Credit Agreement First Amendment Incremental Facilities.
(d) Administrative Agent shall be deemed have received, for the ratable benefit of the Increasing Lenders providing the First Amendment Incremental Facilities on the First Amendment Effective Date, an upfront fee equal to refer to 2.00% of aggregate principal amount of the most recent statements furnished First Amendment Incremental Facilities ($200,000).
(e) the Administrative Agent shall have received payment in full in cash of all fees, costs and expenses due and payable on the date hereof pursuant to clauses (a) and (b), respectively, of Section 6.01 9.05 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date . Funding of the Audited Financial Statements that has had First Amendment Incremental Term Loan shall not release any Loan Party from liability for failure to satisfy one or could be reasonably expected to have, either individually or in more of the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees conditions required to be paid hereunder or under the Fee Letter satisfied by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Loan Party contained in this Section 4.
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts of this Amendment;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two a revised Compliance Certificate as of the end of the fourth fiscal quarter of fiscal year 2012 evidencing compliance with the financial covenants set forth in Article XIV of the Credit Agreement (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarksincluding the amended Section 14.04 set forth above);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;; and
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction of shall become effective on the first date (the “Second Amendment Effective Date”) on which the following conditions precedentprecedent are satisfied or waived:
(a) The the Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals originals, telecopies or facsimiles .pdfs (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing BorrowerLoan Parties which are party thereto, each dated the Second Amendment Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Amendment Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:):
(i) two (2) executed counterparts of this AmendmentAmendment that, when taken together, bear the signatures of (i) each Loan Party, (ii) each Second Amendment Term A Lender, (iii) Term Lenders which together constitute the Required Term Lenders and (iv) Revolving Credit Lenders which together constitute the Required Revolving Lenders;
(ii) two (2) an original Note executed counterparts by the Borrower in favor of the Fee Lettereach Second Amendment Term A Lender requesting a Note;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower of the Loan Parties is duly organized or formed, validly existing and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing (other than Detroit Behavioral Institute, LLC, PHC of Virginia, LLC and qualified Discovery House-UC, Inc. with respect to engage good standing) in business in each its jurisdiction where its ownershipof organization, lease including, (A) to the extent that the Organization Documents of any Loan Party have been amended or operation of properties otherwise modified since last provided to the Administrative Agent on the Closing Date or the conduct date of its business requires such qualificationLoan Party’s joinder to the Subsidiary Guaranty, as applicable, certified copies of the Organization Documents of such Loan Parties, and (B) certificates of good standing of the Loan Parties;
(viv) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of Xxxxx Xxxxxxx US LLP, counsel to the BorrowersBorrower and the Guarantors organized in Delaware, California, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(viivi) a duly executed officer’s certificate of the Borrower certifying, as of the Second Amendment Effective Date, that each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained set forth in Article V of the Credit Agreement or any other Loan DocumentSections 3(a), or which (b) and (c) above are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Second Amendment Closing Effective Date, except ; and
(vii) a Request for Credit Extension pursuant to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (bSection 2.02(a) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Amended Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers Administrative Agent shall have received certification, in form and substance reasonably satisfactory to the Administrative Agent, as to the solvency (as described in Section 5.24 of the Amended Credit Agreement) of the Borrower, individually, and the Loan Parties, taken as a whole from the chief financial officer of the Borrower;
(c) Upon the reasonable request of any Second Amendment Term A Lender made at least 5 days prior to the Second Amendment Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least 2 days prior to the Second Amendment Effective Date and (y) at least 5 days prior to the Second Amendment Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party;
(d) all fees and expenses required to be paid on or before the Second Amendment Effective Date shall have been paid, including those fees and expenses set forth in the Engagement Letter dated as of December 8, 2023 between the Borrower and Bofa Securities, Inc.; and
(e) the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent for and the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Second Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent Term A Lenders to the extent invoiced at least three Business Days prior to or on the Second Amendment Closing Effective Date, plus such additional amounts of Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent and the Second Amendment Term A Lenders as shall constitute its reasonable estimate of Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Second Amendment Effective Date (provided provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness This ------------------------------------------------------- Amendment shall take effect on the date of this Amendment is subject to satisfaction receipt by the Bank of the following conditions precedent:last item specified below (other than any item the delivery of which is expressly deferred or waived in writing by the Bank):
(a) The Administrative Agent’s receipt This Amendment duly executed by the Borrower;
(b) A certificate of the following, unless waived by the Administrative Agent, each of which shall be originals Secretary or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer an Assistant Secretary of the signing BorrowerBorrower with respect to resolutions, each dated of its Board of Directors authorizing the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) execution and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts delivery of this Amendment, identifying the officer(s) authorized to execute, deliver and take all other actions required under this Amendment, or the Credit Agreement;
(iic) two (2) executed counterparts a certificate of the Fee Letterpresident or chief financial officer of the Borrower with respect to representations and warranties under the Credit Agreement, the absence of Defaults, and the locations and value of the Borrower's inventory together with such additional UCC Financing Statements, landlord waivers and insurance certificates as the Bank may deem necessary or desirable, based on the Borrower's locations shown in the schedule attached thereto;
(iiid) two (2) executed counterparts a copy of a Supplement Grant fully executed amendment to the Subordinated Note and Warrant Purchase Agreement dated as of Security Interest March 31, 1992 among the Borrower, the Purchasers named therein and C.T. Capital Trust, N.V., as agent for the Purchasers, reflecting modifications to the Borrower's financial covenants under that agreement in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as conformity with the Administrative Agent may require evidencing Borrower's financial covenants under the identity, authority and capacity of each Responsible Officer thereof authorized Credit Agreement after giving effect to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a partyreinstatement of the Maturity Date;
(ve) such other documents and certifications evidence of completion of such other matters, as the Administrative Agent Bank reasonably may reasonably require to evidence that each Borrower is duly organized deem necessary or formed, desirable. Upon and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or after the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower date of this Amendment all references to the Credit Agreement in that document, or in any related document, shall mean the Credit Agreement as amended by this Amendment. Except as expressly provided in this Amendment, the execution and delivery of this Amendment does not and will not amend, modify or supplement any provision of, or constitute a consent to or a waiver of any noncompliance with the other Loan Documents to which it is a partyprovisions of the Credit Agreement, which consentsand, licenses and approvals except as specifically provided in this Amendment, the Credit Agreement shall be remain in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed . This Amendment is executed as an instrument under seal and shall be governed by a Responsible Officer and construed in accordance with the laws of each Borrower certifying that (A) the representations and warranties The Commonwealth of the Borrowers contained in Article V Massachusetts without regard to its conflicts of law rules. All parts of the Credit Agreement or not affected by this Amendment are hereby ratified and affirmed in all respects, provided that if any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 provision of the Credit Agreement shall ------------- conflict or be deemed to refer to inconsistent with this Amendment, the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution terms of this Amendment or the effectiveness hereof, shall supersede and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)prevail.
Appears in 1 contract
Samples: Revolving Credit Agreement (Ameriquest Technologies Inc)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction shall not become effective until all of the following conditions precedentprecedent shall have been satisfied in the sole discretion of Agent or waived by Agent:
(a) The Administrative Agent’s receipt Agent shall have received fully executed counterparts to (i) this Amendment, (ii) that certain Third Amendment Fee Letter, dated as of the followingdate hereof, unless waived by and among the Administrative AgentBorrowers and Agent (the “Third Amendment Fee Letter”), and that certain Third Amendment Commitment Fee Letter, dated as of the date hereof, by and among the Borrowers, the Lenders and Agent (the “Third Amendment Commitment Fee Letter”).
(b) Agent shall have received a certificate of each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifiedLoan Party, each properly dated the Third Amendment Effective Date and executed by a secretary, assistant secretary, director or other Responsible Officer thereof, which shall (i) certify that (x) attached thereto is a true and complete copy of the signing Borrowercertificate or articles of incorporation, formation or organization of such Loan Party which in the case of a US Loan Party shall be certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon or, as applicable, that no change to its certificate or articles of incorporation, formation or organization has occurred since the Closing Date, (y) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party (or in respect of each dated UK Loan Party, its articles of association), together with all amendments thereto as of the Third Amendment Effective Date and such by-laws or operating, management, partnership or similar agreement or articles of association are in full force and effect or, as applicable, that no change to its by-laws or operating, management, partnership or similar agreement has occurred since the Closing Date and (orz) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution, delivery and performance of this Amendment and the other applicable Loan Documents, and, in the case of certificates the Borrowers, the borrowings and other obligations thereunder, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and a resolution of governmental officialsthe shareholders of each UK Loan Party approving the execution of this Amendment and the other applicable Loan Documents and the taking of any action required or permitted pursuant thereto, (ii) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party signing this Amendment and the other applicable Loan Documents to which such Loan Party is a party on the Third Amendment Effective Date, and (iii) attach a good standing (or equivalent) certificate as of a recent date before for such US Loan Party from the Amendment Closing Daterelevant authority of its jurisdiction of organization,
(c) Agent shall have received a customary written opinion of (i) White & Case, LLP, as U.S. counsel to the Loan Parties, (ii) Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, as local Colorado counsel to the US Loan Parties, and each (iii) White & Case LLP, as UK counsel (with respect to existence and authority of the UK Loan Parties) to the Loan Parties,
(d) Agent shall have received the results of (i) a Lien search (including a search as to litigation, judgments, executions, bankruptcy and insolvency, tax and intellectual property matters to the extent deemed necessary by Agent), in form and substance reasonably satisfactory thereto, made against the Loan Parties under the UCC (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the UCC should be made to evidence or perfect security interests in any Collateral of such Loan Party and, where applicable, in each jurisdiction in which federal tax liens against such Loan Party should be filed, in each case indicating among other things that the Collateral of each such Loan Party are free and clear of any Lien (except for Permitted Liens) and (ii) satisfactory UK company and/or other searches in respect of each UK Loan Party,
(e) Since October 31, 2022, there shall not have occurred a Material Adverse Effect,
(f) Borrowers shall have Excess Availability of at least $100,000,000 after giving effect to the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts terms of this Amendment;
(ii) two (2) executed counterparts , and the payment of all fees and expenses required to be paid by Borrowers on the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Third Amendment Effective Date under this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;Documents,
(vg) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers each Loan Party or its Subsidiaries contained in Article V of the Credit Agreement or any in the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Amendment Closing Datedate hereof, as though made on and as of such date (except to the extent that such representations and warranties specifically refer relate solely to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections ),
(a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Bh) no Default or Event of Default shall exist, or would result from have occurred and be continuing after giving effect to the execution terms of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;Amendment,
(ixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under on the Third Amendment Effective Date pursuant to the Third Amendment Fee Letter by Borrowers on and the Third Amendment Closing Date; Commitment Fee Letter shall have been paid, and
(cj) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent Lender Group Expenses to the extent invoiced at least three (3) Business Days prior to or on the Third Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or Effective Date unless otherwise agreed to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of precedent that DST Systems and the Agent shall have received the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each indicated) dated the Amendment Closing Date (ordate hereof, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) and each in form and substance satisfactory to DST Systems and the Administrative Agent and its legal counselAgent:
(ia) two certified copies of the resolutions (2or similar authorization) executed counterparts of the sole manager of New Seller approving this Amendment and certified copies of all documents evidencing other necessary limited liability company action and governmental approvals, if any, with respect to this Amendment;
(iib) two (2) executed counterparts a certificate of the Fee Letter;
(iii) two (2) executed counterparts Secretary or Assistant Secretary of a Supplement Grant New Seller certifying the names and true signatures of Security Interest in United States Trademarks;
(iv) such certificates the officers of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof New Seller authorized to act as a Responsible Officer in connection with sign this Amendment and the other Loan Documents executed in connection herewith documents to which such Borrower is a partybe delivered by it hereunder;
(vc) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in a copy of good standing certificate for New Seller issued within thirty (30) days prior to the date hereof by the Secretary of State of the state of formation of New Seller and qualified to engage in the state where New Seller’s principal place of business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationis located;
(vid) copies of proper financing statements (Form UCC1) to be filed under the UCC on or before the date of this Agreement in all jurisdictions as may be necessary or, in the opinion of the Agent, desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the transfer by New Seller to DST Systems of the Receivables (and assigned, of record, to the Agent);
(e) copies of proper UCC amendment statements (Form UCC3), if any, necessary to effect the release of all security interests and other rights of any Person in the Receivables of New Seller, and the related Contracts and Related Security;
(f) a favorable opinion or opinions search report provided in writing to the Agent, (i) listing all effective financing statements that name New Seller as debtor and that are filed in the jurisdiction in which filing was made pursuant to subsection (d) above and in such other jurisdiction that the Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the financing statements described in subsection (d) above) shall cover any Receivables, and (ii) listing all tax liens and judgment liens (if any) filed against such New Seller in the jurisdictions described above;
(g) a copy of the executed Amendment;
(h) a Deposit Account Control Agreement (or an update of any amendment to an existing opinion or Deposit Account Control Agreement) covering the new Lock-Box added to Exhibit B; and
(i) such other agreements, instruments, certificates, opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents other documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment Amendment, including, without limitation, the amendments provided in Section 2 above and the limited waiver provided in Section 3 above, is subject to the satisfaction of the following conditions precedent:precedent (the date on which such conditions are satisfied is herein referred to as the “Second Amendment Effective Date”):
(a) The Administrative Agent’s receipt of the following, unless waived by the Administrative Agent, each of which shall be originals or facsimiles (followed promptly by originals) telecopies or “.pdf” or “.tif” copies unless otherwise specified, each properly executed by a Responsible Officer of the signing BorrowerLoan Party, each dated the Second Amendment Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Amendment Closing Effective Date):
(i) one or more counterparts of this Amendment duly executed and each in form and substance satisfactory to delivered by Borrower, the Guarantors, the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts of this Amendmentthe Lenders;
(ii) two (2) executed counterparts of the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii1) a certificate of each Borrower signed by a the Secretary, Assistant Secretary or other Responsible Officer either of each Loan Party dated the Second Amendment Effective Date and certifying (A) attaching copies that attached thereto is a copy of the certificate or articles of incorporation or organization or articles of association or other constituting document, including all consentsamendments thereto, licenses of each Loan Party, as certified as of a recent date by the Secretary of State of the state of its organization (or a certification by such Responsible Officer that there have been no amendments to such constituting document since the First Amendment Effective Date), (B) that attached thereto is a true and approvals required complete copy of the by-laws or other governing document of such Loan Party as in connection with effect on the Second Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (C) below, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or similar governing body of such Loan Party authorizing the execution, delivery and performance byof the Loan Documents, and the validity againstas amended by this Amendment, such Borrower of this Amendment and the other Loan Documents to which it such Person is a partyparty and that such resolutions have not been modified, which consents, licenses rescinded or amended and approvals shall be are in full force and effect, (D) that the certificate or articles of incorporation or organization or other constituting documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate or articles of incorporation or organization furnished pursuant to clause (BA) stating above, (E) that no attached thereto is a true and complete copy of the good standing certificate (or equivalent) of such consentsLoan Party under the laws of its jurisdiction of incorporation, licenses organization or approvals are so requiredformation (or equivalent), as applicable, and (F) to the extent applicable in the Relevant Jurisdiction, as to the incumbency and signature of each officer executing this Amendment, any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and (2) to the extent applicable in the Relevant Jurisdiction, a certificate of another officer as to the incumbency and signature of the Secretary, Assistant Secretary or other Responsible Officer executing the certificate pursuant to clause (1) above;
(viiiiii) a certificate officer’s certificate, dated the Second Amendment Effective Date and signed by a Responsible Financial Officer of each Borrower certifying that the Borrower, confirming compliance with the conditions precedent set forth in this Section 4.
(Ab) Except with respect to the Specified Event of Default, all representations and warranties of the Borrowers by any Loan Party contained in Article V of this Amendment, in the Credit Agreement or and in any other Loan Document, or which Document are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and in all material respects (without duplication of any materiality qualifier contained therein) as of the Second Amendment Closing Effective Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties specifically refer to an earlier date, in which case they shall be were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date).
(c) The Administrative Agent shall have received payment in full in cash of all fees, costs and except that for purposes hereof, expenses due and payable on the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished date hereof pursuant to clauses (a) and (b), respectively, of Section 6.01 9.05 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject shall become effective (according to satisfaction of the terms hereof) on the date that the following conditions precedenthave been satisfied:
(a) The Administrative Agent shall have received counterpart originals of this Amendment, duly executed and delivered by the Agent’s receipt , the Borrowers and the Lenders.
(b) Agent shall have received counterpart originals of the followingnew Revolving Credit Notes, unless waived in each case duly executed and delivered by the Administrative AgentBorrowers and the Lenders;
(c) Agent shall have received evidence from Borrowers (i) that the aggregate amount of Eligible Domestic Billed Receivables, each Eligible Foreign Billed Receivables and Eligible Pledged Securities, is sufficient in value and amount to support the outstanding Revolving Advances and Swing Loans in the amounts requested by Borrowers on the Amendment No. 5 Closing Date and (ii) that Borrowers shall have Excess Availability of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer at least $25,000,000 after giving effect to the consummation of the signing Borrower, each dated Fore Acquisition and the Advances to be made on the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment No. 5 Closing Date.
(d) and Agent shall have received a certificate of the Secretary or Assistant Secretary (or other equivalent officer, partner or manager) of each New Borrower in form and substance satisfactory to Agent dated as of the Administrative Agent and its legal counsel:
Amendment No. 5 Closing Date which shall certify (i) two (2) executed counterparts copies of this Amendment;
(ii) two (2) executed counterparts resolutions in form and substance reasonably satisfactory to Agent, of the Fee Letter;
board of directors (iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other actionequivalent governing body, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized member or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Datepartner) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
New Borrower authorizing (viix) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance byof this Agreement, the Notes and each Other Document to which such New Borrower is a party (including authorization of the incurrence of indebtedness, borrowing of Revolving Advances and Swing Loans and requesting of Letters of Credit on a joint and several basis with all New Borrowers as provided for herein), and (y) the validity against, granting by such New Borrower of the security interests in and liens upon the Collateral to secure all of the joint and several Obligations of New Borrowers (and such certificate shall state that such resolutions have not been amended, modified, revoked or rescinded as of the date of such certificate), (ii) the incumbency and signature of the officers of such New Borrower authorized to execute this Amendment Agreement and the Other Documents, (iii) copies of the Organizational Documents of such New Borrower as in effect on such date, complete with all amendments thereto, and (iv) the good standing (or equivalent status) of such New Borrower in its jurisdiction of organization and, each applicable jurisdiction where the conduct of such New Borrower’s business activities or the ownership of its properties necessitates qualification, as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable jurisdiction) dated not more than 30 days prior to the Amendment No. 5 Closing Date, issued by the Secretary of State or other Loan Documents appropriate official of each such jurisdiction.
(e) Agent shall have received in form and substance satisfactory to which it Agent, (i) evidence that adequate insurance, including without limitation, casualty and liability insurance, required to be maintained under this Agreement is a party, which consents, licenses and approvals shall be in full force and effect, or and (Bii) stating that no insurance certificates issued by New Borrowers’ insurance broker containing such consents, licenses or approvals are so required;information regarding New Borrowers’ casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured as applicable.
(viiif) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties Agent shall have received execution copies of the Borrowers contained final Fore Acquisition Documents in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct effect on and as of the Amendment No. 5 Closing Date, except such documents to be in form and substance reasonably satisfactory to Agent and the Lenders.
(g) Agent shall have received the final funds flow memorandum evidencing the use of proceeds with respect to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 financing transactions of the Credit Agreement shall Borrowers, to be deemed consummated prior to refer to or simultaneously with the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 making of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers Advances on the Amendment No. 5 Closing Date; andDate together with a summary of terms of such financing transactions all of which shall be satisfactory in form and substance to Agent.
(ch) Unless waived by the Administrative Agent, the Borrowers Agent shall have paid all Attorney Costs received a copy of the Administrative fully executed payoff letters from The Huntington National Bank, in each case form and substance satisfactory to Agent.
(i) Agent shall have received payment of an amendment fee in an amount equal to $75,000 for distribution to the extent invoiced prior to or Lenders on the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)pro rata basis.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Universal Logistics Holdings, Inc.)
Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this This Amendment is subject to satisfaction shall not become effective until all of the following conditions precedentprecedent shall have been satisfied in the sole discretion of Agent or waived by Agent:
(a) The Administrative Agent’s receipt Agent shall have received fully executed counterparts to (i) this Amendment, (ii) that certain Fourth Amendment Fee Letter, dated as of the followingdate hereof, unless waived by and among the Administrative AgentBorrowers and Agent (the “Fourth Amendment Fee Letter”), and that certain Fourth Amendment Commitment Fee Letter, dated as of the date hereof, by and among the Borrowers, the Lenders and Agent (the “Fourth Amendment Commitment Fee Letter”),
(b) Agent shall have received a certificate of each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifiedLoan Party, each properly dated the Fourth Amendment Effective Date and executed by a secretary, assistant secretary, director or other Responsible Officer thereof, which shall (i) certify that (x) attached thereto is a true and complete copy of the signing Borrowercertificate or articles of incorporation, formation or organization of such Loan Party which in the case of a US Loan Party shall be certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon or, as applicable, that no change to its certificate or articles of incorporation, formation or organization has occurred since the Closing Date, (y) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party (or in respect of each dated UK Loan Party, its articles of association), together with all amendments thereto as of the Fourth Amendment Effective Date and such by-laws or operating, management, partnership or similar agreement or articles of association are in full force and effect or, as applicable, that no change to its by-laws or operating, management, partnership or similar agreement has occurred since the Closing Date and (orz) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution, delivery and performance of this Amendment and the other applicable Loan Documents, and, in the case of certificates the Borrowers, the borrowings and other obligations thereunder, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and a resolution of governmental officialsthe shareholders of each UK Loan Party approving the execution of this Amendment and the other applicable Loan Documents and the taking of any action required or permitted pursuant thereto, (ii) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party signing this Amendment and the other applicable Loan Documents to which such Loan Party is a party on the Fourth Amendment Effective Date, and (iii) attach a good standing (or equivalent) certificate as of a recent date before for such US Loan Party from the Amendment Closing Daterelevant authority of its jurisdiction of organization,
(c) Agent shall have received a customary written opinion of (i) White & Case, LLP, as U.S. counsel to the Loan Parties, (ii) Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, as local Colorado counsel to the US Loan Parties, and each (iii) White & Case LLP, as UK counsel to the Loan Parties,
(d) Agent shall have received fully executed counterpart to the Second UK Supplemental Guarantee and Debenture and any notices required to be delivered in connection therewith, it being understood and agreed that such condition precedent shall be satisfied so long as Agent shall have received fully executed counterpart to the Second UK Supplemental Guarantee and Debenture and any notices required to be delivered in connection therewith within two (2) Business Days of the date hereof,
(e) Agent shall have received the results of (i) a Lien search (including a search as to litigation, judgments, executions, bankruptcy and insolvency, tax and intellectual property matters to the extent deemed necessary by Agent), in form and substance reasonably satisfactory thereto, made against the Loan Parties under the UCC (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the UCC should be made to evidence or perfect security interests in any Collateral of such Loan Party and, where applicable, in each jurisdiction in which federal tax liens against such Loan Party should be filed, in each case indicating among other things that the Collateral of each such Loan Party are free and clear of any Lien (except for Permitted Liens) and (ii) satisfactory UK company and/or other searches in respect of each UK Loan Party,
(f) Since October 31, 2022, there shall not have occurred a Material Adverse Effect,
(g) Borrowers shall have Excess Availability of at least $250,000,000 after giving effect to the Administrative Agent and its legal counsel:
(i) two (2) executed counterparts terms of this Amendment;
(ii) two (2) executed counterparts , and the payment of all fees and expenses required to be paid by Borrowers on the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Fourth Amendment Effective Date under this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;Documents,
(vh) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties of the Borrowers each Loan Party or its Subsidiaries contained in Article V of the Credit Agreement or any in the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Amendment Closing Datedate hereof, as though made on and as of such date (except to the extent that such representations and warranties specifically refer relate solely to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections ),
(a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (Bi) no Default or Event of Default shall exist, or would result from have occurred and be continuing after giving effect to the execution terms of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;Amendment,
(ixj) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under on the Fourth Amendment Effective Date pursuant to the Fourth Amendment Fee Letter by Borrowers on and the Fourth Amendment Closing Date; Commitment Fee Letter shall have been paid, and
(ck) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent Lender Group Expenses to the extent invoiced at least three (3) Business Days prior to or on the Fourth Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or Effective Date unless otherwise agreed to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
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Conditions Precedent to Effectiveness of this Amendment. The effectiveness This Amendment shall become effective as of this Amendment is subject to satisfaction of May 11, 1999, if, and only if the following conditions precedent:Agent shall have received
(a) The Administrative Agent’s receipt a facsimile or original executed copy of the following, unless waived this Amendment executed by the Administrative AgentParent, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated the Amendment Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Closing Date) Borrower and each Lender,
(b) a Reaffirmation Agreement, in form and substance satisfactory to the Administrative Agent Agent, executed by each Borrower and its legal counsel:Guarantor,
(ic) two corporate resolutions and a secretary's certificate with respect thereto for each of the Borrowers and Guarantors a party to this Amendment or the aforesaid Reaffirmation Agreement authorizing the execution and delivery of such agreements on behalf of such Persons,
(2d) executed counterparts payment of a fee, for the account of each Lender executing and delivering this Amendment, in the amount of one-eighth of one percent (0.125%) of the respective Lenders' Revolving Credit Commitment immediately prior to giving effect to this Amendment,
(e) payment of a fee, for the account of each Lender increasing its Revolving Credit Commitment pursuant to the terms of this Amendment;, in the amount of three-eighths of one percent (0.375%) of the amount by which such respective Lender's Revolving Credit Commitment is so increased,
(iif) two (2) copies of duly executed counterparts of consents under, or amendments to, the Fee Letter;
(iii) two (2) executed counterparts of a Supplement Grant of Security Interest in United States Trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents executed in connection herewith to which such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each Borrower executing this Amendment and any other Loan Documents executed in connection herewith is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions (or an update of any existing opinion or opinions given on or about the Closing Date) of counsel to the Borrowers, addressed to the Administrative Agent and each Lenderapplicable TROL Documents, as may be required to such matters concerning permit the Loan Parties and increase in the Revolving Credit Commitments evidenced by this Amendment and Amendment, the Loan Documents as resultant increase in Obligations incurred under the Administrative Agent may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance byCredit Agreement, and the validity againstobligations incurred by Parent under the North Carolina Lease Guaranty, such Borrower of this Amendment and the other Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the representations and warranties performance of the Borrowers contained in Article V other terms and conditions of the Credit Agreement or any other Loan Documentas amended through the effective date of this Amendment, or which are contained in any document furnished at any time without the occurrence of a resultant Event of Default under or in connection herewith or therewith, shall be true and correct on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (aSECTION 12.01(E)(IV) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, (B) no Default or Event of Default shall exist, or would result from the execution of this Amendment or the effectiveness hereof, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require;
(b) The Borrowers shall have paid to the Administrative Agent for the account of each applicable Lender all fees required to be paid hereunder or under the Fee Letter by Borrowers on the Amendment Closing Date; and
(cg) Unless waived by an opinion of counsel to Parent and the Administrative Borrowers, in form and substance satisfactory to the Agent, with respect to this Amendment, the Borrowers shall have paid all Attorney Costs Reaffirmation Agreement referenced hereinabove, and no contravention of the Administrative Agent Senior Subordinated Notes or TROL Documents arising with respect to the extent invoiced prior to or on execution and delivery of the Amendment Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Loan Documents.
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Samples: Credit Agreement (Aviation Sales Co)
