Conditions Precedent to the Restatement Date. This agreement shall become effective upon the prior or concurrent fulfillment or waiver of the following conditions precedent (the “Effective Time”): (a) this Agreement shall have been duly executed and delivered by each of the Obligors, the Administrative Agent and the Lenders; (b) each of Investec Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, shall have executed and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective Time; (c) the Administrative Agent shall have received: (i) an executed acknowledgement and confirmation agreement, in form and substance satisfactory to the Administrative Agent, from each of the Obligors, as to the continuing effectiveness of the Security Documents delivered by such Obligor under the Credit Agreement; (ii) a certificate of each of the Canadian/US/Barbadian Obligors certifying (A) as to its Constating Documents (copies of which are attached to that certificate) and such other corporate information as the Administrative Agent may reasonably require, (B) a copy of the resolution of the board of directors or managers of each Canadian/US/Barbadian Obligor authorizing it to execute, deliver and perform its obligations under this Agreement and a confirmation agreement to which such Canadian/US/Barbadian Obligor is a signatory and (C) a list of its officers and directors with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement; (iii) to the extent not previously delivered, an updated Compliance Certificate from the Borrower for the twelve months ended June 30, 2022; (iv) a certificate of status, compliance, good standing or similar certificate for the jurisdiction of incorporation of each of the Canadian/US/Barbadian Obligors and for each jurisdiction where such Canadian/US/Barbadian Obligor carries on business, to the extent applicable; and
Appears in 1 contract
Conditions Precedent to the Restatement Date. This agreement shall become effective upon the prior or concurrent fulfillment or waiver of the following conditions precedent (the “Effective Time”):
(a) this Agreement shall the conditions precedent set forth in Section 12.1 have been duly executed and delivered by each of the Obligors, the Administrative Agent and the Lendersfulfilled;
(b) each the Borrower, The Bank of Investec Nova Scotia and Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, of Montreal shall have executed and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective TimeTransfer Agreement;
(c) the Obligors shall have duly executed and delivered to the Administrative Agent shall have received:
(i) an executed acknowledgement and confirmation agreementthe Credit Documents to which each is a party, in form and substance satisfactory to the Administrative Agent;
(d) the Administrative Agent has received, from each of the Obligors, as in form and substance satisfactory to the continuing effectiveness of Administrative Agent:
(i) the Security Documents delivered by such Obligor under the Credit AgreementPerfection Certificate with respect to each Subject Entity;
(ii) a certificate of each Closing Certificate of the Canadian/US/Barbadian Obligors certifying (A) as to its Constating Documents (copies of which are attached to that certificate) and such other corporate information as the Administrative Agent may reasonably require, (B) a copy of the resolution of the board of directors or managers of each Canadian/US/Barbadian Obligor authorizing it to execute, deliver and perform its obligations under this Agreement and a confirmation agreement to which such Canadian/US/Barbadian Obligor is a signatory and (C) a list of its officers and directors with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this AgreementBorrower;
(iii) to the extent not previously delivered, an updated Compliance a Closing Certificate from the Borrower for the twelve months ended June 30, 2022of each Guarantor;
(iv) a certificate of status, compliance, status or good standing for each Subject Entity issued by the appropriate governmental body or similar certificate for agency of the jurisdiction in which such Subject Entity is incorporated;
(v) opinions of counsel to the Obligors addressed to, inter alia, the Administrative Agent and the other Finance Parties and their counsel, relating to the status and capacity of the Obligors, the due authorization, execution and delivery and the validity and enforceability of the Credit Documents to which such Obligor is a party in the jurisdiction of incorporation of such Obligor, and such other matters as the Administrative Agent may reasonably request;
(vi) certificates of insurance and statements of coverage with respect to the insurance referred to in Section 11.1(d);
(vii) requisite information to identify each Subject Entity under the applicable “know your client” and anti-money laundering/anti-terrorism legislation and regulations, delivered sufficiently in advance for each Lender to complete such identification.
(e) a compliance certificate with respect to Sections 11.1(m) and (n) on a pro forma basis, substantially in the form attached as Schedule B hereto;
(f) there shall exist no pending or threatened (in writing) litigation, proceedings or investigations which contest, enjoin or restrict the consummation of the Canadian/US/Barbadian Obligors Credit Facility or any part thereof and for each jurisdiction where such Canadian/US/Barbadian Obligor carries on business, the execution of the amendments to the extent applicableSecurity Documents;
(g) the Lenders shall have completed and be satisfied with their technical, environmental, financial and legal due diligence review of the Subject Entities;
(h) except as otherwise provided in the relevant Security Documents, all documents and instruments shall have been properly registered, recorded and filed in all places which are desirable or required to make effective the Security created or intended to be created by the Obligors in favour of the Administrative Agent pursuant to the Security Documents and to ensure the perfection and the intended priority of such Security;
(i) all documents and instruments shall have been properly registered, recorded and filed in all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, acknowledgements, undertakings, directions, negotiable documents of title and other documents and instruments to the Administrative Agent shall have been made which, in the opinion of the Administrative Agent’s counsel, acting reasonably, are desirable or required to make effective the Security created or intended to be created by the Obligors in favour of the Administrative Agent pursuant to the Security Documents and to ensure the perfection and the intended priority of the Security;
(j) the Lenders shall be satisfied that all corporate, governmental and third party approvals, acknowledgements, directions and consents necessary in connection with the agreements and transactions referenced to herein or any part thereof have been given in form and substance satisfactory to the Lenders and all Applicable Law have been complied with, in each case in all material respects in respect of all agreements and transactions referred to herein;
(k) all outstanding Indebtedness of the Subject Entities which is not Permitted Indebtedness shall have been permanently repaid and cancelled and all guarantees and security agreements executed and delivered under or in connection therewith shall have been released and satisfactory arrangements for the discharge of all attendant security registrations and the return of all collateral security in connection therewith shall have been made;
(l) no Material Adverse Change shall have occurred (nor shall the Administrative Agent or any Lender become aware of any facts not previously known), since September 30, 2022;
(m) all security registrations perfecting the security interests under the Security Documents in connection with the Existing Credit Agreement shall have been amended (i) to reflect Bank of Montreal, as Administrative Agent, as the secured party thereunder and (ii) to reflect the terms and conditions of this agreement;
(n) all physical collateral (ie: pledged share certificates) previously pledged to The Bank of Nova Scotia, as administrative agent under the Existing Credit Agreement, shall have been delivered to Bank of Montreal, as administrative agent hereunder by The Bank of Nova Scotia; and
(o) the Borrower shall have paid to the Administrative Agent and the Co-Lead Arrangers all fees and expenses (including the fees and expenses of the Administrative Agent’s legal counsel) required to be paid on or before the Restatement Date including those fees set forth in the Fee Letters.
Appears in 1 contract
Samples: Credit Agreement (Ero Copper Corp.)
Conditions Precedent to the Restatement Date. This agreement shall become effective upon the prior or concurrent fulfillment or waiver The obligation of the following Lender Group (or any member thereof) to make the initial Advance under the Credit Agreement on the Restatement Date (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent (the “Effective Time”):set forth below:
(a) this Agreement the Restatement Date shall have been duly executed and delivered by each of the Obligorsoccur on or before May 25, the Administrative Agent and the Lenders2007;
(b) each of Investec Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, shall have executed and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective Time;
(c) the Administrative Agent shall have received:
(i) an executed acknowledgement and confirmation agreementreceived each of the following documents, in form and substance satisfactory to the Administrative Agent, from duly executed, and each such document shall be in full force and effect:
(i) Reaffirmation of the Obligors, as to the continuing effectiveness of the Security Documents delivered by such Obligor under the Credit Agreement;Collateral Documents,
(ii) the Disbursement Letter,
(iii) the Fee Letter, and
(iv) the Officers’ Certificate,
(c) Agent shall have received a certificate from the Secretary of Borrower attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute the same;
(d) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Restatement Date, certified by the Secretary of Borrower;
(e) Agent shall have received a certificate of each status with respect to Borrower, dated within 10 days of the Canadian/US/Barbadian Obligors certifying (A) as Restatement Date, such certificate to its Constating Documents (copies of which are attached to that certificate) and such other corporate information as be issued by the Administrative Agent may reasonably require, (B) a copy appropriate officer of the resolution jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the board Restatement Date, such certificates to be issued by the appropriate officer of directors the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or managers licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(g) [Intentionally Omitted];
(h) [Intentionally Omitted];
(i) [Intentionally Omitted];
(j) Agent shall have received an opinion of each Canadian/US/Barbadian Obligor authorizing it Borrower’s counsel in form and substance satisfactory to execute, deliver Agent;
(k) Borrower shall have the Borrowing Base Availability of not less than $10,000,000 after giving effect to the initial extensions of credit hereunder and perform its obligations the payment of all fees and expenses required to be paid by Borrower on the Restatement Date under this Agreement or the other Loan Documents;
(l) Borrower shall have paid all documented and a confirmation agreement to which such Canadian/US/Barbadian Obligor is a signatory and (C) a list of its officers and directors invoiced Lender Group Expenses incurred in connection with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to transactions evidenced by this Agreement;
(iiim) to the extent not previously delivered, an updated Compliance Certificate from the Borrower for the twelve months ended June 30, 2022[Intentionally Omitted];
(ivn) a certificate of status, compliance, good standing or similar certificate for the jurisdiction of incorporation of each of the Canadian/US/Barbadian Obligors and for each jurisdiction where such Canadian/US/Barbadian Obligor carries on business, to the extent applicable[Intentionally Omitted]; and
(o) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to the Restatement Date. This agreement The amendment and restatement of the Existing Secured Credit Agreement and the obligations of each Lender to make Credit Extensions hereunder shall not become effective upon until the prior or concurrent fulfillment or waiver date (the “Restatement Date”) on which each of the following conditions precedent is satisfied (the “Effective Time”or waived in accordance with Section 11.5):
(a) On the Restatement Date, (i) the Credit Parties, the Administrative Agent and each Lender shall have signed a counterpart of this Agreement and shall have delivered (or transmitted by telecopy) the same to the Administrative Agent at its Payment Office; and (ii) there shall have been duly delivered to the Administrative Agent for the account of each Lender that has requested the same the appropriate Note or Notes, executed by each Borrower, in each case in the amount, maturity and delivered by as otherwise provided herein;
(b) On the Restatement Date, the Administrative Agent shall have received (i) an opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the ObligorsLenders and dated the Restatement Date, from Xxxxxx Xxxx & Xxxxxx LLP, special New York counsel to the Credit Parties, which opinion shall cover the matters contained in Exhibit F-1, (ii) an opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders and dated the Restatement Date, from Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel to the Credit Parties, which opinion shall cover the matters contained in Exhibit F-2, and (iii) an opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders and dated the Restatement Date, from Xxxxx & XxXxxxxx, special Swiss counsel to the Credit Parties, which opinion shall cover the matters contained in Exhibit F-3.
(c) On the Restatement Date, the Administrative Agent shall have received a certificate, signed by a Responsible Officer of each Credit Party, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) each of the representations and warranties set forth in this Agreement and in the other Credit Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects, each as of the Restatement Date (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct (if qualified as to materiality) or true and correct in all material respects (if not so qualified), in each case as of such date), (ii) there is no pending or threatened litigation, bankruptcy or other proceeding in which there is a reasonable likelihood of an adverse determination which could reasonably be expected to result in a Material Adverse Effect or which seeks to restrain, enjoin or prevent the closing of the credit facility provided for herein, (iii) no Default or Event of Default exists as of the Restatement Date and (iv) there has not occurred or become known to the Administrative Agent since December 31, 2011, a change, occurrence or development that could reasonably be expected to have a Material Adverse Effect;
(d) On the Restatement Date, the Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each Credit Party, in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Credit Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority, if available,) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws or similar governing document of such Credit Party, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of the other Credit Documents, and attaching all such copies of the documents described above;
(e) On the Restatement Date, the Administrative Agent shall have received counterparts of the Security Agreements and Account Control Agreements executed by the Borrowers, together with:
(i) all documents and instruments, including Uniform Commercial Code financing statements where applicable, in each jurisdiction reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Security Agreements;
(ii) results of a recent search of the Uniform Commercial Code (or equivalent) filings made with respect to each Credit Party in the jurisdictions contemplated in clause (i) above (including, without limitation, Washington D.C. and Bermuda) and in such other jurisdictions in which Collateral is located on the Restatement Date which may be reasonably requested by the Administrative Agent, and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by the Credit Documents or have been terminated or released;
(iii) for each Custodial Account, a duly executed Account Control Agreement with the applicable Custodian in a form reasonably acceptable to the Administrative Agent and each such Account Control Agreement shall be in full force and effect; and
(iv) a duly executed Collateral Base Report from each Borrower, confirming that the Minimum Collateral Amount (after giving effect to the Issuance of the Existing Letters of Credit as set forth in Section 3.3) does not exceed the Collateral Base.
(f) All approvals, permits and consents of any Governmental Authorities (including all relevant Insurance Regulatory Authorities) or other Persons required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained (without the imposition of conditions that are not reasonably acceptable to the Administrative Agent), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have reasonably requested and such documents and papers where appropriate to be certified by proper corporate or governmental authorities; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or thereby, or that could reasonably be expected to have a Material Adverse Effect;
(g) Since December 31, 2011, both immediately before and after giving effect to the making of the initial Credit Extensions (if any), there shall not have occurred a change, occurrence or development that could reasonably be expected to have a Material Adverse Effect;
(h) On the Restatement Date, there shall exist no Default or Event of Default, and all representations and warranties made by each Credit Party contained herein or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date);
(i) The Credit Parties shall have paid (i) to the Joint Arrangers and the Administrative Agent, the fees specified in the Fee Letters to be paid to them on the Restatement Date, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Fee Letter between the Credit Parties and the Administrative Agent, and (iii) all other fees and reasonable expenses of the Joint Arrangers, the Administrative Agent and the LendersLenders required hereunder or under any other Credit Document to be paid on or prior to the Restatement Date (including legal fees and expenses) pursuant to the Commitment Letter;
(bj) The current Financial Strength Rating of each Material Insurance Subsidiary is “B++” or better;
(k) Concurrently with the Restatement Date, all accrued and unpaid obligations of Investec Bank plc and Societe Generale, in their respective capacities as lenders the Credit Parties under the Existing Secured Credit Agreement, Agreement shall have executed been paid in full, and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective Time;
(c) the Administrative Agent shall have received:received evidence of the foregoing satisfactory to it;
(l) Concurrently with the Restatement Date, (i) an executed acknowledgement all amounts outstanding under the unsecured credit facility of the Credit Parties evidenced by the Credit Agreement dated as of November 27, 2007, among the Credit Parties, the lenders identified therein and confirmation agreementXxxxx Fargo, as administrative agent (as amended, the “Existing Unsecured Credit Agreement”) shall be repaid and satisfied in form full and substance all guarantees relating thereto extinguished, (ii) all commitments to extend credit under the Existing Unsecured Credit Agreement shall be terminated, and (iii) any letters of credit outstanding under the Existing Unsecured Credit Agreement shall be deemed issued hereunder as Existing Letters of Credit; and the Administrative Agent shall have received evidence of the foregoing satisfactory to it, including a payoff letter executed by the Administrative Agent, from each of the Obligors, as parties to the continuing effectiveness of the Security Documents delivered by such Obligor under the Existing Unsecured Credit Agreement;
(iim) a certificate The Administrative Agent shall have received an Account Designation Letter from an Authorized Officer of each of Borrower;
(n) The Administrative Agent shall have received from the Canadian/US/Barbadian Obligors certifying (A) as to its Constating Documents (copies of which are attached to that certificate) Credit Parties all documentation and such other corporate information as reasonably requested by the Administrative Agent may that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act; and
(o) The Administrative Agent shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably require, (B) a copy requested. Without limiting the generality of the resolution provisions of Section 10.4, for purposes of determining compliance with the board of directors or managers of conditions specified in this Section 4.1, each Canadian/US/Barbadian Obligor authorizing it to execute, deliver and perform its obligations under Lender that has signed this Agreement and shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a confirmation agreement to which Lender unless the Administrative Agent shall have received notice from such Canadian/US/Barbadian Obligor is a signatory and (C) a list of its officers and directors with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement;
(iii) Lender prior to the extent not previously delivered, an updated Compliance Certificate from the Borrower for the twelve months ended June 30, 2022;
(iv) a certificate of status, compliance, good standing or similar certificate for the jurisdiction of incorporation of each of the Canadian/US/Barbadian Obligors and for each jurisdiction where such Canadian/US/Barbadian Obligor carries on business, to the extent applicable; andproposed Restatement Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Allied World Assurance Co Holdings, AG)
Conditions Precedent to the Restatement Date. This agreement shall become effective upon the prior or concurrent fulfillment or waiver of the following conditions precedent (the “Effective Time”):
(a) this Agreement shall the conditions precedent set forth in Section 12.1 have been duly executed and delivered by each of the Obligors, the Administrative Agent and the Lenders;fulfilled or waived; 286042.00064/106711224.9 Credit Agreement - Equinox
(b) each of Investec Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, shall have executed and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective TimeTransaction has occurred;
(c) subject to Section 11.1(w), each Obligor shall have duly executed and delivered to the Administrative Agent each of the Credit Documents to which it is a party, including the Credit Documents referenced in Schedule I hereto (which, in the case of previously executed Credit Documents, shall have received:
(ibe limited to a Confirmation delivered in respect thereof from each applicable Obligor and such other amendments deemed necessary or advisable by the Administrative Agent’s counsel, acting reasonably, having regard for the increased credit and extended term hereunder) an executed acknowledgement and confirmation agreement, in form and substance satisfactory to the Administrative Agent;
(d) the Borrowers shall have provided the Administrative Agent with satisfactory evidence that all security granted by any Restatement Date Obligor that is not a Permitted Lien has been discharged and released or otherwise the Administrative Agent and its counsel have been irrevocably authorized to so discharge and release;
(e) the Omnibus Intercreditor Agreement, from the Franco-Nevada Mubadala Intercreditor Agreement and the Mubadala/Sandstorm Intercreditor Agreement shall have each been amended or otherwise confirmed by each of the Obligorsparties thereto, as in each case in form and substance satisfactory to the continuing effectiveness Lenders in their sole discretion exercised reasonably;
(f) the Administrative Agent has received:
(i) a duly certified copy of the Security Documents delivered by such Obligor under the Credit Agreementarticles of incorporation, articles of amalgamation, articles of association or similar documents and by-laws of each Obligor;
(ii) a certificate of status or good standing for each Obligor (where available) issued by the appropriate governmental body or agency of the Canadian/US/Barbadian Obligors certifying jurisdiction in which such Obligor is incorporated or otherwise formed;
(A) as to its Constating Documents (copies of which are attached to that certificate) and such other corporate information as the Administrative Agent may reasonably require, (Biii) a duly certified copy of the resolution of the board of directors or managers of each Canadian/US/Barbadian Obligor authorizing it to execute, deliver and perform its obligations under this Agreement and a confirmation agreement each Credit Document to which such Canadian/US/Barbadian Obligor is a signatory and a duly certified copy of the resolution of the board of directors or managers or shareholders (Cif required under the constating documents or by-laws of such Obligor) a list of such Obligor (other than Equinox) authorizing the pledge of all of its officers issued and directors with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement;
(iii) outstanding Shares to the extent not previously delivered, an updated Compliance Certificate from Administrative Agent and any subsequent disposition thereof by the Borrower for Administrative Agent in realizing on the twelve months ended June 30, 2022security therein constituted by the relevant Security Documents;
(iv) a certificate of statusan officer of each Obligor, compliancein such capacity, good standing setting forth specimen signatures of the individuals authorized to sign the Credit Documents to which such Obligor is a signatory;
(v) a certificate of a senior officer of each of the Borrowers, in such capacity, certifying that, (i) to the best of his knowledge after due inquiry, no Default has occurred and is continuing or similar would arise immediately upon this agreement becoming effective and (ii) that the Transaction has occurred; 286042.00064/106711224.9 Credit Agreement - Equinox
(vi) a compliance certificate in the form of Schedule B hereto signed by a senior financial officer of Equinox evidencing compliance (on a pro forma basis based on the financial statements from the most recently completed Fiscal Quarter and accounting for each aspect of the Transaction) with financial covenants set forth in Sections 11.1(m), (n),(n), (o) and (p);
(vii) an updated Mine Plan which includes the Leagold Mines;
(viii) certificates representing all of the issued and outstanding Shares of the Obligors (other than Equinox and only to the extent such shares are certificated), duly endorsed in blank or accompanied by an executed stock transfer power of attorney;
(ix) a Perfection Certificate for each Obligor signed by an officer of such Obligor;
(x) to the extent not delivered pursuant to Section 12.2(f)(ix), certified true copies of the Material Agreements;
(xi) insurance binders signed by the issuers of the insurance policies maintained by the Obligors and, in respect of the Obligors, acknowledging the interests of the Finance Parties in such policies as referred to in Section 11.1(d);
(xii) an opinion of counsel to each Obligor addressed to the Finance Parties and their counsel relating to the status and capacity of such Obligor, the due authorization, execution and delivery and the legality, validity, binding nature and enforceability of the Credit Documents to which such Obligor is a party as of the Restatement Date, in the jurisdiction where the Secured Assets are located and/or the jurisdiction of incorporation or formation of such Obligor and such other matters as the Administrative Agent may reasonably request;
(xiii) in respect of all owned and leased real property of the Obligors (other than leases of office space or residential housing), a Title Opinion addressed to each Finance Party, in form and substance satisfactory to the Administrative Agent;
(xiv) certified true and complete copies of each Convertible Debentures Document including all amendments thereto in effect as of the Canadian/US/Barbadian Restatement Date; and
(xv) requisite information to identify the Obligors under the applicable “know your client” legislation, Anti-Corruption Laws and Anti-Money Laundering Legislation, delivered sufficiently in advance for each jurisdiction where Lender to complete such Canadian/US/Barbadian Obligor carries on business, to the extent applicable; andidentification;
Appears in 1 contract
Conditions Precedent to the Restatement Date. This agreement shall become effective upon the prior or concurrent fulfillment or waiver The obligation of the following Lender Group (or any member thereof) to make the initial Loans under the Credit Agreement on the Restatement Date (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent (the “Effective Time”):set forth below:
(a) this Agreement the Restatement Date shall have been duly executed and delivered by each of the Obligorsoccur on or before August 20, the Administrative Agent and the Lenders2007;
(b) each of Investec Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, shall have executed and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective Time;
(c) the Administrative Agent shall have received:
(i) an executed acknowledgement and confirmation agreementreceived each of the following documents, in form and substance satisfactory to the Administrative Agent, from duly executed, and each such document shall be in full force and effect:
(i) Reaffirmation of the Obligors, as to the continuing effectiveness of the Security Documents delivered by such Obligor under the Credit Agreement;Collateral Documents,
(ii) a certificate of each of the Canadian/US/Barbadian Obligors certifying (A) as to its Constating Documents (copies of which are attached to that certificate) and such other corporate information as the Administrative Agent may reasonably require, (B) a copy of the resolution of the board of directors or managers of each Canadian/US/Barbadian Obligor authorizing it to execute, deliver and perform its obligations under this Agreement and a confirmation agreement to which such Canadian/US/Barbadian Obligor is a signatory and (C) a list of its officers and directors with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement;Disbursement Letter,
(iii) to the extent not previously delivered, an updated Compliance Certificate from the Borrower for the twelve months ended June 30, 2022;Fee Letter,
(iv) the Side Letter, and
(v) the Officers’ Certificate,
(c) Agent shall have received a certificate from the Secretary of Borrower attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute the same;
(d) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Restatement Date, certified by the Secretary of Borrower;
(e) Agent shall have received a certificate of statusstatus with respect to Borrower, compliancedated within 10 days of the Restatement Date, good standing or similar such certificate for to be issued by the appropriate officer of the jurisdiction of incorporation organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Canadian/US/Barbadian Obligors and for each Restatement Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction where of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such Canadian/US/Barbadian Obligor carries on business, jurisdictions;
(g) Agent shall have received intellectual property searches with respect to all domestic registered intellectual property of the extent applicableBorrower;
(h) [Intentionally Omitted]; and(i) [Intentionally Omitted];
Appears in 1 contract
Conditions Precedent to the Restatement Date. This agreement shall become effective upon the prior or concurrent fulfillment or waiver of the following conditions precedent (the “Effective Time”):
(a) this Agreement the conditions precedent set forth in Section 12.1 have been fulfilled or waived;
(b) the Administrative Agent has received satisfactory evidence that (x) Mubadala has advanced $130,000,000 to Equinox in accordance with the terms of the Mubadala Convertible Debenture and (y) all indebtedness, obligations and liabilities in respect of each of the Sprott Indebtedness and the $85,000,000 credit facility provided by Sprott to Aurizona have all been repaid in full and cancelled;
(c) each Obligor (other than Viceroy Gold Corporation, Castle Mountain, Xxxx Gold Corp., Aurizona, Xxxx Gold Pesquisas Minerais LTDA and Mineração Aurizona S.A.) (collectively, the “Restatement Date Obligors”) shall have duly executed and delivered to the Administrative Agent each of the Credit Documents to which it is a party listed under the heading "Initial Security" in Schedule I hereto (which, in the case of previously executed Credit Documents, shall be limited to a Confirmation delivered in respect thereof from each applicable Restatement Date Obligor and such other amendments deemed necessary or advisable by the Administrative Agent’s counsel, acting reasonably) in form and substance satisfactory to the Administrative Agent;
(d) the Borrowers shall have provided the Administrative Agent with satisfactory evidence that all security granted by any Restatement Date Obligor that is not a Permitted Lien has been discharged and released;
(e) the Omnibus Intercreditor Agreement, the Franco-Nevada ICP Acknowledgement and the Mubadala/Sandstorm ICP Acknowledgement shall have each been duly executed and delivered by each of the Obligors, the Administrative Agent and the Lendersparties thereto;
(b) each of Investec Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, shall have executed and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned byf) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective Time;
(c) the Administrative Agent shall have has received:
(i) an executed acknowledgement and confirmation agreement, in form and substance satisfactory to the Administrative Agent, from each a duly certified copy of the Obligorsarticles of incorporation, as to the continuing effectiveness articles of the Security Documents delivered by such Obligor under the Credit Agreementamalgamation, articles of association or similar documents and by-laws of each Restatement Date Obligor;
(ii) a certificate of status or good standing for each Restatement Date Obligor (where available) issued by the appropriate governmental body or agency of the Canadian/US/Barbadian Obligors certifying jurisdiction in which such Restatement Date Obligor is incorporated or otherwise formed;
(A) as to its Constating Documents (copies of which are attached to that certificate) and such other corporate information as the Administrative Agent may reasonably require, (Biii) a duly certified copy of the resolution of the board of directors or managers of each Canadian/US/Barbadian Restatement Date Obligor authorizing it to execute, deliver and perform its obligations under this Agreement and a confirmation agreement each Credit Document to which such Canadian/US/Barbadian Restatement Date Obligor is a signatory and a duly certified copy of the resolution of the board of directors or managers or shareholders (Cif required under the constating documents or by-laws of such Restatement Date Obligor) a list of such Restatement Date Obligor (other than Equinox) authorizing the pledge of all of its officers issued and directors with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement;
(iii) outstanding Shares to the extent not previously delivered, an updated Compliance Certificate from Administrative Agent and any subsequent disposition thereof by the Borrower for Administrative Agent in realizing on the twelve months ended June 30, 2022security therein constituted by the relevant Security Documents;
(iv) a certificate of statusan officer of each Restatement Date Obligor, compliancein such capacity, good standing setting forth specimen signatures of the individuals authorized to sign the Credit Documents to which such Restatement Date Obligor is a signatory;
(v) a certificate of a senior officer of each of the Borrowers, in such capacity, certifying that, to the best of his knowledge after due inquiry, no Default has occurred and is continuing or similar certificate would arise immediately upon this agreement becoming effective;
(vi) certificates representing all of the issued and outstanding Shares of the Restatement Date Obligors (other than Equinox, Solius Holdco and only to the extent such shares are certificated), duly endorsed in blank or accompanied by an executed stock transfer power of attorney;
(vii) a Perfection Certificate for each Obligor signed by an officer of such Obligor;
(viii) to the extent not delivered pursuant to Section 12.2(f)(vii), certified true copies of the Material Agreements and the Mining Licenses;
(ix) insurance binders signed by the issuers of the insurance policies maintained by the Restatement Date Obligors and, in respect of the Restatement Date Obligors, acknowledging the interests of the Finance Parties in such policies as referred to in Section 11.1(d);
(x) an opinion of counsel to each Restatement Date Obligor addressed to the Finance Parties and their counsel relating to the status and capacity of such Restatement Date Obligor, the due authorization, execution and delivery and the legality, validity, binding nature and enforceability of the Credit Documents to which such Restatement Date Obligor is a party as of the Restatement Date, in the jurisdiction where the Secured Assets are located and/or the jurisdiction of incorporation or formation of such Restatement Date Obligor and such other matters as the Administrative Agent may reasonably request;
(xi) in respect of all owned real property of the Restatement Date Obligors (including, for certainty, the Mesquite Mine), (i) title insurance for the benefit of, or a title opinion addressed to, each Finance Party, in form and substance satisfactory to the Administrative Agent; (ii), if required, a survey of such real property acceptable to Administrative Agent and the title insurance company and (iii), if required, a duly executed subordination and non-disturbance agreement from each tenant, subordinating all leases of such real property, in form and substance satisfactory to the Administrative Agent;
(xii) certified true and complete copies of each Convertible Debentures Document in effect as of the Canadian/US/Barbadian Restatement Date; and
(xiii) requisite information to identify the Obligors under the applicable “know your client” legislation, Anti-Corruption Laws and Anti-Money Laundering Legislation, delivered sufficiently in advance for each jurisdiction where Lender to complete such Canadian/US/Barbadian Obligor carries identification;
(g) nothing shall have occurred (nor shall the Administrative Agent or by any Lender become aware of any facts not previously known), which the Lenders in their sole discretion, shall determine is reasonably likely to have a Material Adverse Effect on the business, property, assets, liabilities, conditions (financial or otherwise) of either Borrower and any of its Subsidiaries, taken as a whole, or prospects of Equinox and its Subsidiaries taken as a whole from that set forth in financial statements for the period ending December 31, 2018;
(h) there shall exist no pending or threatened (in writing) litigation, proceedings or investigations which (x) contest the consummation of the Credit Facility or any part thereof or (y) could reasonably be expected to have a Material Adverse Effect;
(i) the Administrative Agent and its counsel shall be satisfied, acting reasonably, that all necessary approvals, acknowledgements, directions and consents have been given and that all relevant laws have been complied with in respect of all agreements and transactions referred to herein;
(j) except as otherwise provided in the relevant Security Documents, all documents and instruments shall have been properly registered, recorded and filed in all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, directions, acknowledgements, undertakings and non-disturbance agreements contemplated herein, negotiable documents of title, ownership certificates and other documents and instruments to the extent applicableAdministrative Agent shall have been made which, in the opinion of the Administrative Agent’s counsel, are desirable or required to make effective the Security created or intended to be created by the Restatement Date Obligors in favour of the Administrative Agent pursuant to the Security Documents listed under the heading "Initial Security" in Schedule I hereto and to ensure the perfection and the intended priority (subject to Permitted Liens) of such Security;
(k) the Borrowers shall have paid to the Administrative Agent and the Lenders all fees and expenses required to be paid hereunder and under the Fee Letter; and
(l) the Borrowers shall have paid all reasonable invoiced fees of the Administrative Agent’s professional advisors.
Appears in 1 contract
Conditions Precedent to the Restatement Date. This agreement shall become effective upon the prior or concurrent fulfillment or waiver of the following conditions precedent on or before the Outside Date (the “"Effective Time”"):
(a) this Agreement shall have been duly executed and delivered by each of the Obligors, the Administrative Agent and the Lenders;
(b) each of Investec Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, shall have executed and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they Lenders shall cease to be lenders under have received a satisfactory memo from Equinox outlining the Existing Credit Agreement as at sequencing for closing of the Effective TimeGreenstone Acquisition and the flow of funds specified in Sections 2.2 and 2.5 of the Greenstone Purchase Agreement;
(c) Equinox shall have provided the Administrative Agent with satisfactory evidence that the payments referenced in Section 2.2 of the Greenstone Purchase Agreement have been made or will be made prior to or contemporaneously with the initial drawdown under the TL Facility hereunder which shall be documented by the flow of funds memorandum referenced in subparagraph (b) above;
(d) the Greenstone Acquisition shall have been consummated concurrently with, or substantially concurrently with, the initial extension of credit under the TL Facility, in all material respects in accordance with the Greenstone Purchase Agreement without any material modification, amendment, consent or waiver by Premier Hardrock of any condition precedents thereunder to the extent such waiver would be materially adverse to the Lenders in their capacities as such;
(e) all assets of the Obligors (including, for certainty, OMF and the Greenstone Entities) shall be free and clear of Liens, except for Permitted Liens;
(f) the Credit Agreement (for the purpose of this Section 12.2(f) only, as defined in the Greenstone Purchase Agreement) and all guarantees, security agreements, cash management and hedging agreements attendant thereto shall have been irrevocably repaid and permanently cancelled and all collateral delivered in connection therewith returned to OMF or subject to irrevocable undertakings and agreements from the administrative agent under such Credit Agreement pursuant to payoff or similar agreements in form and content satisfactory to the Administrative Agent, acting reasonably;
(g) there shall have been no waiver by Premier Hardrock of any of the Seller Fundamental Representations (as defined in the Greenstone Purchase Agreement) which would be materially adverse to the Lenders in their capacities as such, other than those waivers which have been approved by the Administrative Agent and the Majority Lenders, in each case, acting reasonably and not to be unreasonably withheld;
(h) no Company Material Adverse Change and no Greenstone Material Adverse Change (as each such term is defined in the Greenstone Purchase Agreement) shall have occurred since the date of execution and delivery of the Greenstone Purchase Agreement;
(i) the Administrative Agent shall have received:
(i) an executed acknowledgement and confirmation agreement, in form and substance satisfactory to the Administrative Agent, from each of the Obligors, as to the continuing effectiveness of the Security Documents delivered by such Obligor under the Credit Agreement;
(ii) a Perfection Certificate (on a post-Greenstone Acquisition basis) in respect of each Greenstone Entity and any other Canadian Obligor, if applicable;
(iii) a certificate of each of the Canadian/US/Barbadian Canadian Obligors certifying (A) as to its Constating Documents constating documents (copies of which are attached to that certificate) and such other corporate information as the Administrative Agent may reasonably require, (B) a copy of the resolution of the board of directors or managers of each Canadian/US/Barbadian Canadian Obligor authorizing it to execute, deliver and perform its obligations under this Agreement and a confirmation agreement to which such Canadian/US/Barbadian Canadian Obligor is a signatory signatory, and (C) a list of its officers and directors with specimens of the signatures of those who are executing this Agreement, and all other documents relating to this Agreement, on its behalf and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement;
(iiiiv) the financial model referenced in the definition of the Restatement Date Financial Model, such model to the extent not previously deliveredbe form and substance acceptable to The Bank of Nova Scotia, an updated Compliance Certificate from the Borrower for the twelve months ended June 30Bank of Montreal, 2022ING Capital LLC and National Bank of Canada;
(ivv) the existing Title Opinion dated October 31, 2023 (and reliance letter addressed to the Administrative Agent and the Lenders with respect thereto) in respect of the Greenstone Project;
(vi) a certificate of status, compliance, good standing or similar certificate for the jurisdiction of incorporation of each of the Canadian/US/Barbadian Canadian Obligors and for each jurisdiction where such Canadian/US/Barbadian Canadian Obligor carries on business, to the extent applicable; and
(vii) an opinion of counsel to each Obligor in Canada, addressed to the Administrative Agent and the Lenders relating to the status and capacity of such Obligor, the due authorization, execution and delivery and the legality, validity, binding nature and enforceability of this Agreement and Credit Documents to which such Canadian Obligor is a party as of the Restatement Date, in the jurisdiction where the Secured Assets are located and/or the jurisdiction of incorporation or formation of such Canadian Obligor and such other matters as the Administrative Agent may reasonably request;
(j) the Administrative Agent must have received payment of all fees payable to the Administrative Agent, the Lenders or any of them in connection with this Agreement (including, for certainty, the fees under the Fee Letter), and the reimbursement of all documented expenses incurred and reimbursable by the Borrower pursuant to Section 8.5(a) including legal fees;
(k) the Specified Representations shall be true and correct in all respects on and as of the date of this Agreement, by reference to the facts and circumstances then existing (except to the extent such representations and warranties relate to a different date, in which case such representations and warranties shall be true and correct in all material respects on and as of such date) and Equinox shall have delivered an officer's certificate to the Administrative Agent to such effect;
(l) each Canadian Obligor shall have duly executed and delivered to the Administrative Agent each of the Credit Documents to which it is a party, including the Post-Closing Undertaking and the Credit Documents referenced in Schedule I hereto (which, in the case of previously executed Credit Documents (other than the Credit Documents previously executed by Premier Hardrock), shall be limited to a Confirmation delivered in respect thereof from each applicable Obligor and such other amendments deemed necessary or advisable by the Administrative Agent's counsel, acting reasonably, having regard for the increased credit and extended term hereunder) in form and substance satisfactory to the Administrative Agent and the Greenstone Entities shall have executed and delivered instruments and adhesion to each such agreement;
(m) consents under the Omnibus Intercreditor Agreement, the Franco-Nevada Intercreditor Agreement and the Mubadala/Sandstorm Intercreditor Agreement shall have been delivered, in each case in form and substance satisfactory to the Administrative Agent;
(i) OMF and the Greenstone Entities shall have executed and delivered to the Administrative Agent a joinder agreement to the Omnibus Intercreditor Agreement and (ii) the Administrative Agent, the Convertible Debentures Agent and, in the case of the Franco-Nevada Intercreditor Agreement, Franco-Nevada, and in the case of the Mubadala/Sandstorm Intercreditor Agreement, Sandstorm, shall each have waived in writing the requirement for OMF and the Greenstone Entities to execute joinder agreements to the Franco-Nevada Intercreditor Agreement and the Mubadala/Sandstorm Intercreditor Agreement;
(o) Nomad shall have executed and delivered the Nomad Acknowledgment Agreement, in form and substance satisfactory to the Administrative Agent, acting reasonably;
(p) the Administrative Agent has received:
(i) a certificate of a senior officer of each of the Borrowers, in such capacity, certifying that, to the best of his knowledge after due inquiry, no Default has occurred and is continuing or would arise immediately upon this agreement becoming effective;
(ii) certificates representing all of the issued and outstanding Shares of the Canadian Obligors (other than Equinox but including, for certainty, OMF and the Greenstone Entities) and only to the extent such shares are certificated, duly endorsed in blank or accompanied by an executed stock transfer power of attorney;
(iii) insurance binders signed by the issuers of the insurance policies maintained by the Obligors and, in respect of the Canadian Obligors, acknowledging the interests of the Finance Parties in such policies as referred to in Section 11.1(d);
(iv) certified true and complete copies of the Greenstone Purchase Agreement, including all amendments thereto in effect as of the Restatement Date; and
(v) requisite information to identify the Obligors under the applicable "know your client" legislation, Anti-Corruption Laws and Anti-Money Laundering and Terrorism Legislation, delivered sufficiently in advance for each Lender to complete such identification;
(q) there shall exist no pending or threatened (in writing) litigation, proceedings or investigations which (x) contest the consummation of the Credit Facilities or any part thereof or (y) could reasonably be expected to have a Material Adverse Effect;
(r) the Administrative Agent and its counsel shall be satisfied, acting reasonably, that all necessary approvals, acknowledgements, directions and consents have been given and that all relevant laws have been complied with in respect of all agreements and transactions referred to herein; and
(s) all documents and instruments shall have been properly registered, recorded and filed in all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, directions, acknowledgements, undertakings and non-disturbance agreements contemplated herein, negotiable documents of title, ownership certificates and other documents and instruments to the Administrative Agent shall have been made which, in the opinion of the Administrative Agent's counsel, are desirable or required to make effective the Security created or intended to be created by the Canadian Obligors in favour of the Administrative Agent pursuant to the Security Documents governed by Canadian Applicable Laws and to ensure the perfection and the intended priority (subject to Permitted Liens) of such Security.
Appears in 1 contract
Conditions Precedent to the Restatement Date. This agreement The amendment and restatement of this Agreement shall not become effective upon until the prior or concurrent fulfillment or waiver date on which each of the following conditions precedent shall be satisfied or waived except as otherwise agreed by the Company and the Arrangers of the Revolving Credit Facility (the first such date on which each of the following conditions were satisfied or waived, the “Effective TimeRestatement Date”):
(a) The Agent (or its counsel) shall have received a counterpart of this Agreement shall have been duly executed and delivered by each of the ObligorsRestatement Date UK Borrower, the Administrative Agent Company and the LendersLenders party hereto;
(b) each of Investec Bank plc and Societe Generale, in their respective capacities as lenders under the Existing Credit Agreement, The Agent shall have executed received (x) a customary opinion from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York special counsel to the Company with respect to matters of New York law and delivered irrevocable notice letters certain aspects of Delaware law; and (y) a customary opinion from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, U.K. special counsel to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirmingRestatement Date UK Borrower, inter alia, their respective confirmations that they shall cease with respect to be lenders under the Existing Credit Agreement as at the Effective Timematters of English law;
(c) the Administrative The Agent shall have receivedreceived all fees, expense reimbursement and other amounts previously agreed in writing by the Arrangers and the Company to be due and payable on or prior to the Restatement Date (in the case of reimbursement of reasonable out of pocket expenses and legal fees solely to the extent invoiced at least three Business Days prior to the Restatement Date (except as otherwise reasonably agreed by Borrower)), required to be reimbursed or paid by any Borrower under any Loan Document;
(d) The Agent shall have received on or before the Restatement Date copies of the following, each dated the Restatement Date, in form and substance reasonably satisfactory to the Agent:
(i) an executed acknowledgement and confirmation agreement, in form and substance satisfactory Notes to the Administrative Agent, from each of the Obligors, as Lenders to the continuing effectiveness of extent requested by any Lender pursuant to Section 2.16 prior to the Security Documents delivered by such Obligor under the Credit AgreementRestatement Date;
(ii) a certificate of each Certified copies of the Canadian/US/Barbadian Obligors certifying (A) as to its Constating Documents (copies of which are attached to that certificate) and such other corporate information as the Administrative Agent may reasonably require, (B) a copy resolutions of the resolution Board of Directors of the board of directors or managers of each Canadian/US/Barbadian Obligor authorizing it to execute, deliver Company and perform its obligations under the Restatement Date UK Borrower approving this Agreement and a confirmation agreement to which such Canadian/US/Barbadian Obligor is a signatory and (C) a list of its officers and directors with specimens of the signatures of those who are executing this AgreementNotes, and of all documents evidencing other documents relating necessary corporate action and governmental approvals, if any, with respect to this Agreement, on its behalf Agreement and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement;Notes; and
(iii) to the extent not previously delivered, an updated Compliance Certificate from the Borrower for the twelve months ended June 30, 2022;
(iv) a A certificate of status, compliance, good standing the Secretary or similar certificate for the jurisdiction of incorporation of each an Assistant Secretary of the Canadian/US/Barbadian Obligors Company certifying the names and for each jurisdiction where such Canadian/US/Barbadian Obligor carries on businesstrue signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A certificate of a director of the Restatement Date UK Borrower certifying the names and true signatures of the officers of the Restatement Date UK Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the corporate authorisations referred to in paragraph (ii) above and (y) the up-to-date and certified constitutional documents (including the certificate of incorporation, the certificate of incorporation on change of name and memorandum and articles of association).
(e) The Agent shall have received a solvency certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis are solvent;
(f) At least three Business Days prior to the Restatement Date (x) all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Restatement Date and (y) to the extent the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Company at least ten Business Days prior to the Restatement Date, a Beneficial Ownership Certification in relation to the Company shall have received such Beneficial Ownership Certification;
(g) No Default or Event of Default has occurred and is continuing;
(h) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) On the Restatement Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated as of the Restatement Date, certifying to the occurrence or satisfaction clauses (vii) and (viii) of this Section 3.04 substantially concurrently with the occurrence of the Restatement Date;
(j) The representations and warranties contained in Section 4.01 are correct in all material respects (or if qualified by materiality, in all respects) on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be correct in all material respects (or if qualified by materiality, in all respects) as of such earlier date);
(k) The Borrower shall have made, or substantially simultaneously with the effectiveness of the amendment and restatement of this Agreement, shall make the Restatement Date Prepayment; and
(l) The Borrower shall have paid, or substantially simultaneously with the effectiveness of the amendment and restatement of this Agreement, shall pay all accrued and unpaid interest on, and all fees and other amounts owing in respect of, the Existing Revolving Loans and Existing Revolving Credit Commitments.
Appears in 1 contract
Samples: Credit Agreement (Td Synnex Corp)
Conditions Precedent to the Restatement Date. This agreement shall become effective upon The effectiveness of the prior or concurrent fulfillment or waiver amendment and restatement of the Existing Credit Agreement is subject to satisfaction of the following conditions precedent (the “Effective Time”):precedent:
(a) this Agreement shall have been duly executed and delivered by The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Obligorssigning Loan Party, each dated the Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and a reaffirmation of the Guaranty, duly executed by each Loan Party party thereto;
(ii) executed counterparts of the Amendment Agreement, duly executed by the Required Lenders (as defined in the Existing Credit Agreement), and each Loan Party;
(iii) in the case of any Additional Lender and any Existing Lender that continues to have a Commitment hereunder on and after the Restatement Date, an Addendum, duly executed by the Borrower and such Additional Lender or Existing Lender, as applicable;
(b) The Administrative Agent’s receipt of the following, each of Investec Bank plc and Societe Generalewhich shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Restatement Date (or, in their respective capacities as lenders under the Existing Credit Agreementcase of certificates of governmental officials, shall have executed a recent date before the Restatement Date) and delivered irrevocable notice letters to (and which letters shall be acknowledged and countersigned by) the Administrative Agent and the Borrowers confirming, inter alia, their respective confirmations that they shall cease to be lenders under the Existing Credit Agreement as at the Effective Time;
(c) the Administrative Agent shall have received:
(i) an executed acknowledgement and confirmation agreement, each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of the Pledge and Security Agreement duly executed by each Loan Party, from together with:
(A) certificates representing the Pledged Equity referred to therein, accompanied by undated stock powers executed in blank in the case of certificated Pledged Equity,
(B) the results of a recent lien search in each of the Obligorsjurisdictions where the Loan Parties are organized or where assets of the Loan Parties are located, as and such search shall reveal no liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.01 or discharged on or prior to the continuing effectiveness Restatement Date pursuant to documentation reasonably satisfactory to the Administrative Agent,
(C) proper financing statements, either duly filed on or before the day of the Security Documents delivered by such Obligor initial Credit Extension or in form appropriate for filing under the Credit Agreement;
(ii) a certificate Uniform Commercial Code of each of the Canadian/US/Barbadian Obligors certifying (A) as to its Constating Documents (copies of which are attached to all jurisdictions that certificate) and such other corporate information as the Administrative Agent may reasonably requiredeem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement,
(BD) a copy evidence of the resolution completion of all actions required pursuant to the board of directors or managers of each Canadian/US/Barbadian Obligor authorizing it Pledge and Security Agreement with respect to executethe attachment, deliver and perform its obligations under this Agreement and a confirmation agreement to which such Canadian/US/Barbadian Obligor is a signatory and (C) a list of its officers and directors with specimens of the signatures of those who are executing this Agreementperfection, and protection of priority of security interests in the Collateral, including without limitation any actions required with respect to IP Rights, securities, instruments, deposit accounts and securities accounts, and including all other documents relating to this Agreementactions, on its behalf recordings and the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under this Agreement, and all other documents relating to this Agreement;
(iii) filings of or with respect to the extent not previously deliveredCollateral or the Pledge and Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, an updated Compliance Certificate from the Borrower for the twelve months ended June 30, 2022;
(iv) a certificate of status, compliance, good standing or similar certificate for the jurisdiction of incorporation of each of the Canadian/US/Barbadian Obligors and for each jurisdiction where such Canadian/US/Barbadian Obligor carries on business, to the extent applicable; and
Appears in 1 contract
