Conditions to Amendment and Restatement. The Existing Credit Agreement became effective on the Closing Date upon satisfaction of the conditions set forth in Section 4.01 thereof, and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon the satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, 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 Loan Party, each dated as of the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement and an Affirmation Agreement from each Guarantor, as applicable; (ii) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; (iii) such documents and certifications (including, without limitation, Organizational Documents and good standing certificates) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and (iv) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent. (b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, including, with respect to the Mortgaged Properties, (i) delivery by the applicable Loan Parties of one or more mortgage amendments, supplements or restatements in form and substance reasonably satisfactory to the Administrative Agent with respect to the Mortgages, duly executed, acknowledged and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent). (c) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent. (d) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying compliance with this Section 4.01(d). (e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement. (f) The Administrative Agent shall have received executed counterparts of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit Lender. (g) All fees and expenses due to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Effective Date shall have been paid. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon the Effective Date, the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewith.
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Conditions to Amendment and Restatement. The Existing Credit Agreement became effective following shall be conditions precedent to the effectiveness of the amendment and restatement of this Agreement:
(a) the representations and warranties of AFC, AmeriCredit and the Issuer set forth or referred to in Article 4 hereof shall be true and correct in all material respects on October 30, 2006 (the “Amendment and Restatement Effective Date”) as though made on and as of the Amendment and Restatement Effective Date (except for representations and warranties which relate to a specific date, which shall be true and correct as of such date), and no event which of itself or with the giving of notice or lapse of time, or both, would constitute a Termination Event shall have occurred and be continuing on the Closing Amendment and Restatement Effective Date;
(b) an amendment to the Supplemental Fee Letter shall have been executed and delivered by the Sellers to the Administrative Agent; and
(c) the Administrative Agent and the Agents shall have received on the Amendment and Restatement Effective Date upon the following items, each of which shall be in form and substance satisfactory to the Agents:
(i) an Officer’s Certificate of AFC confirming the satisfaction of the conditions set forth in Section 4.01 thereof, clause (a) (as to representations and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon warranties of AFC only) above;
(ii) an Officer’s Certificate of AmeriCredit confirming the satisfaction of the following conditions precedent:
set forth in clause (a) The Administrative Agent(as to representations and warranties of AmeriCredit only) above;
(iii) an Officer’s receipt Certificate of the followingIssuer confirming the satisfaction of the conditions set forth in clause (a) (as to representations and warranties of the Issuer only) above;
(iv) a copy of (A) the charter and by-laws of, and an incumbency certificate with respect to its officers executing any of the Related Documents on the Amendment and Restatement Effective Date on behalf of, each of AmeriCredit and AFC, certified by its authorized officer, and (B) resolutions of the Board of Directors (or an authorized committee thereof) of each of AmeriCredit and AFC with respect to the Related Documents to which shall be originals it is party, certified by its authorized officer;
(v) a certificate issued no earlier than 30 days prior to the Amendment and Restatement Effective Date by an appropriate Governmental Authority evidencing the legal existence and good standing of each of AFC, the Issuer and AmeriCredit;
(vi) the favorable written opinions of counsel for AFC, AmeriCredit, and the Issuer, addressed to the Administrative Agent and each Agent and Class C Purchaser, or facsimiles (followed promptly accompanied by originals) unless otherwise specifieda letter providing that the Administrative Agent and each Agent and Class C Purchaser may rely on such opinions as if they were addressed to them, and dated the Amendment and Restatement Effective Date, covering general corporate matters, the due execution and delivery of, and the enforceability of, each properly of the Related Documents to which the AFC, AmeriCredit and the Issuer is party, true sale, bankruptcy, bank insolvency, security interest and tax matters and such other matters as the Administrative Agent or any Agent may request;
(vii) an executed copy of the Sale and Servicing Agreement, the Indenture, the Custodial Agreement, the Lockbox Agreement, the Trust Agreement and the Master Sale and Contribution Agreement;
(viii) evidence satisfactory to the Administrative Agent that financing statements duly executed by a Responsible Officer of AmeriCredit, the signing Loan PartyIssuer and AFC or other, each dated similar instruments or documents, as of the Effective Date (may be necessary or, in the case opinion of the Administrative Agent or any Agent or Class C Purchaser, desirable under the Uniform Commercial Code of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Related Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid;
(ix) counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the Issuer, the Sellers, the Servicer, the Administrative Agent and Noteholders representing the Required Class C Owners and Required Class C Purchasers; and
(x) such additional documents, instruments, certificates of governmental officialsor letters as the Administrative Agent or any Agent or Class C Purchaser may reasonably request.
(d) the Class A Notes, a recent date the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes shall have been duly issued in accordance with the Sale and Servicing Agreement and the Indenture and the Reserve Account and Collateral Account shall have been established with the Trustee;
(e) the Sellers shall have paid all fees payable on or before the Effective Datedate of such borrowing to the Administrative Agent (for its own account or for the account of the initial Class C Purchasers and Agents) described in the Supplemental Fee Letters and each all reasonable and appropriately invoiced costs and expenses of the Administrative Agent and the initial Agents and Class C Purchasers payable by the Sellers, to the extent provided herein, in form connection with the transactions contemplated hereby;
(f) the Administrative Agent and substance reasonably the Agents shall have received the following:
(i) evidence satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement the initial Agent that the Class A Notes will continue to be rated AAA by S&P, that the Class B Notes are rated AA or higher by S&P, and an Affirmation Agreement from each Guarantor, as applicablethat the Class C Notes are rated A or higher by S&P;
(ii) such customary certificates a report by Ernst & Young on the results of resolutions or other actiona full operational audit performed by them, incumbency certificates and/or other certificates of Responsible Officers of which report is in form and substance satisfactory to each Loan Party 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;Agent; and
(iii) such documents and certifications (including, without limitation, Organizational Documents and good standing certificatesthe duly executed Class C Note(s) registered in the name of each Agent as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each nominee on behalf of the Borrower and the Guarantors is validly existing, Class C Owners in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and
(iv) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, including, with respect to the Mortgaged Properties, (i) delivery by the applicable Loan Parties of one or more mortgage amendments, supplements or restatements in form and substance reasonably satisfactory to the Administrative Agent with respect to the Mortgages, duly executed, acknowledged and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent).
(c) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(d) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying compliance with this Section 4.01(d).
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The Administrative Agent shall have received executed counterparts of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit LenderPurchaser Group.
(g) All fees and expenses due evidence satisfactory to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Effective Date shall have been paid. Without limiting the generality each initial CP Conduit that its purchase of Class C Notes hereunder will not result in a reduction or withdrawal of the provisions rating of Section 9.03its Commercial Paper Notes by Xxxxx’x, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon the Effective Date, the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement S&P or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewithnationally recognized rating agency rating its Commercial Paper Notes.
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Conditions to Amendment and Restatement. The Existing Credit Agreement became effective on the Closing Date upon satisfaction of the conditions set forth in Section 4.01 thereof, and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon the satisfaction of the following conditions precedent:
(a) The Loan Party Documents On or before the Amendment No. 3 Effective Date, Parent shall, and shall cause each other Loan Party to, deliver to Administrative Agent’s receipt of Agent (with sufficient originally executed copies, where appropriate, for each Lender) the following, each of which shall be originals following with respect to Parent or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing such Loan Party, each dated as of the Effective Date (or, in the case of certificates of governmental officialsmay be, a recent date before each, unless otherwise noted, dated the Amendment No. 3 Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts Copies of this Agreement and an Affirmation Agreement the Organizational Documents of such Person, certified by the Secretary of State of its jurisdiction of organization or, if such document is of a type that may not be so certified, certified by the secretary or similar Officer of the applicable Loan Party, together with a good standing certificate from the Secretary of State of its jurisdiction of organization and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar Taxes from the appropriate taxing authority of each Guarantorof such jurisdictions, as applicableeach dated a recent date prior to the Amendment No. 3 Effective Date;
(ii) Resolutions of the Governing Body of such customary Person approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Amendment No. 3 Effective Date by the secretary or similar Officer of such Person as being in full force and effect without modification or amendment;
(iii) Signature and incumbency certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible the Officers of each such Person executing the Loan Party as Documents to which it is a party;
(iv) Executed originals of 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 Agreement and the other Loan Documents to which such Loan Party Person is a party or is to be a party;(including the Subsidiary Guaranty executed and delivered by each Subsidiary of Parent and Company); and
(iiiv) such Such other documents and certifications (including, without limitation, Organizational Documents and good standing certificates) as the Administrative Agent may reasonably require request.
(b) Fees Company shall have paid to evidence that each Loan Party is duly organized or formedAdministrative Agent, for distribution (as appropriate) to Administrative Agent and that each of Lenders, the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement fees payable on the Closing Amendment No. 3 Effective Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify referred to no such change in lieu of redelivering such documents; andSection 2.3.
(ivc) Corporate and Capital Structure; Ownership The corporate organizational structure, capital structure and ownership of Parent and its Subsidiaries shall be as set forth on Schedule 3.3 annexed hereto.
(d) Representations and Warranties Parent shall have delivered to Administrative Agent an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to each Agent and each LenderOfficer’s Certificate, in form and substance reasonably satisfactory to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, including, with respect to the Mortgaged Propertieseffect that the representations and warranties in ARTICLE IV are true, (i) delivery by the applicable Loan Parties of one or more mortgage amendments, supplements or restatements in form correct and substance reasonably satisfactory to the Administrative Agent with respect to the Mortgages, duly executed, acknowledged and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording complete in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent).
(c) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(d) The conditions set forth in Section 4.02 shall have been satisfied material respects on and as of the Amendment No. 3 Effective Date, immediately before and after giving effect Date to the Amendment same extent as though made on and Restatement and the other transactions contemplated hereby as of that date (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j))or, and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying compliance with this Section 4.01(d).
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (to the extent due such representations and payable under the Existing Credit Agreement warranties specifically relate to an earlier date, that such representations and warranties were true, correct and complete in all material respects on and as of such earlier date), that each Loan Party shall have performed in all material respects all agreements and satisfied all conditions which this Agreement provides shall be performed or satisfied by it on or before the Amendment No. 3 Effective Date) Date except as otherwise disclosed to and (ii) the prepayment premium pursuant agreed to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The in writing by Administrative Agent shall have received executed counterparts and that no Potential Event of this AgreementDefault or Event of Default has occurred and is continuing; provided that, each of which if a representation and warranty, covenant or condition is qualified as to materiality, the applicable materiality qualifier set forth above shall be originals disregarded with respect to such representation and warranty, covenant or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit Lender.
(g) All fees and expenses due to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Effective Date shall have been paid. Without limiting the generality of the provisions of Section 9.03, condition for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon the Effective Date, the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewithcondition.
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Conditions to Amendment and Restatement. The Existing Credit Agreement became effective on As conditions precedent to the Closing Date upon satisfaction effectiveness of the conditions set forth in Section 4.01 thereof, amendment and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon the satisfaction restatement of the following conditions precedentthis Agreement:
(a1) The Borrower shall have delivered or shall have caused to be delivered to the Administrative Agent’s receipt of the following, 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 Loan Party, each dated as of the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent Lenders and its legal counseltheir counsel and duly executed by the appropriate Persons (with sufficient copies for each of the Lenders), each of the following:
(iA) executed counterparts of this Agreement and an Affirmation Agreement from each Guarantor, as applicableThis Agreement;
(iiB) To the extent requested by any Lender pursuant to Section 1.8(6) above and not previously delivered, a Note payable to such customary certificates Lender;
(C) To the extent not previously delivered, the REIT Guaranty and the Subsidiary Guaranties;
(D) The Pledge Agreements;
(E) A certificate of the Secretary or Assistant Secretary of the general partner or managing member of those Borrower Parties which are partnerships or limited liability companies attaching copies of resolutions duly adopted by the Board of Directors of such general partner or other actionmanaging member approving the execution, incumbency certificates and/or other certificates delivery and performance of Responsible Officers the Loan Documents on behalf of each Loan Party as such Borrower Parties and certifying the Administrative Agent may require evidencing names and true signatures of the identity, authority and capacity officers of each Responsible Officer thereof such general partner or managing member authorized to act as a Responsible Officer in connection with this Agreement and sign the other Loan Documents to which such Loan Party is a party or is to be a Borrower Parties are party;
(iiiF) A certificate or certificates of the Secretary or an Assistant Secretary of those Borrower Parties which are corporations attaching copies of resolutions duly adopted by the Board of Directors of such documents Borrower Parties approving the execution, delivery and certifications (including, without limitation, Organizational performance of the Loan Documents to which such Borrower Parties are party and good standing certificates) as certifying the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, names and that true signatures of the officers of each of such Borrower Parties authorized to sign the Loan Documents on behalf of such Borrower Parties;
(i) An opinion of counsel for the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation Parties as of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and
(iv) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages Agent and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection Lenders; and protection (ii) an opinion of the Liens created thereby shall have been takencounsel for MAC, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, including, with respect to the Mortgaged Properties, (i) delivery by the applicable Loan Parties of one or more mortgage amendments, supplements or restatements in form and substance reasonably satisfactory acceptable to the Administrative Agent with respect and the Lenders, regarding MAC’s status as a REIT;
(H) Copies of the Certificate of Incorporation, Certificate of Formation, or Certificate of Limited Partnership of each of the Borrower Parties, certified by the Secretary of State of the state of formation of such Person as of a recent date; provided that if there has been no amendment or modification to the Mortgages, duly executed, acknowledged and aforementioned documents since they were delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage DeliverableApril 25, 2005, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as each Borrower Party may be agreed by the Administrative Agent).
(c) The Administrative Agent shall have received deliver a certificate from the Chief Financial Officer Secretary or an Assistant Secretary of Holdingssuch Borrower Party (or if such Person is a limited partnership, in substantially the form an authorized representative of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(dgeneral partner) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying compliance with this Section 4.01(d).
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The Administrative Agent shall have received executed counterparts date of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) Agreement certifying that the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto documents as previously delivered are true and (iii) each Extending Revolving Credit Lender.
(g) All fees correct and expenses due to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Effective Date shall that there have been paid. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed no amendments or changes to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon the Effective Date, the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewith.;
Appears in 1 contract
Samples: Revolving Loan Facility Credit Agreement (Macerich Co)
Conditions to Amendment and Restatement. The Existing Credit Agreement became effective following shall be conditions precedent to the effectiveness of the amendment and restatement of this Agreement:
(a) the representations and warranties of AFC, AmeriCredit and the Issuer set forth or referred to in Article 4 hereof shall be true and correct in all material respects on October 30, 2006 (the “Amendment and Restatement Effective Date”) as though made on and as of the Amendment and Restatement Effective Date (except for representations and warranties which relate to a specific date, which shall be true and correct as of such date), and no event which of itself or with the giving of notice or lapse of time, or both, would constitute a Termination Event shall have occurred and be continuing on the Closing Amendment and Restatement Effective Date;
(b) an amendment to the Supplemental Fee Letter shall have been executed and delivered by the Sellers to the Administrative Agent; and
(c) the Administrative Agent and the Agents shall have received on the Amendment and Restatement Effective Date upon the following items, each of which shall be in form and substance satisfactory to the Agents:
(i) an Officer’s Certificate of AFC confirming the satisfaction of the conditions set forth in Section 4.01 thereof, clause (a) (as to representations and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon warranties of AFC only) above;
(ii) an Officer’s Certificate of AmeriCredit confirming the satisfaction of the following conditions precedent:
set forth in clause (a) The Administrative Agent(as to representations and warranties of AmeriCredit only) above;
(iii) an Officer’s receipt Certificate of the followingIssuer confirming the satisfaction of the conditions set forth in clause (a) (as to representations and warranties of the Issuer only) above;
(iv) a copy of (A) the charter and by-laws of, and an incumbency certificate with respect to its officers executing any of the Related Documents on the Amendment and Restatement Effective Date on behalf of, each of AmeriCredit and AFC, certified by its authorized officer, and (B) resolutions of the Board of Directors (or an authorized committee thereof) of each of AmeriCredit and AFC with respect to the Related Documents to which shall be originals it is party, certified by its authorized officer;
(v) a certificate issued no earlier than 30 days prior to the Amendment and Restatement Effective Date by an appropriate Governmental Authority evidencing the legal existence and good standing of each of AFC, the Issuer and AmeriCredit;
(vi) the favorable written opinions of counsel for AFC, AmeriCredit, and the Issuer, addressed to the Administrative Agent and each Agent and Class A Purchaser, or facsimiles (followed promptly accompanied by originals) unless otherwise specifieda letter providing that the Administrative Agent and each Agent and Class A Purchaser may rely on such opinions as if they were addressed to them, and dated the Amendment and Restatement Effective Date, covering general corporate matters, the due execution and delivery of, and the enforceability of, each properly of the Related Documents to which the AFC, AmeriCredit and the Issuer is party, true sale, bankruptcy, bank insolvency, security interest and tax matters and such other matters as the Administrative Agent or any Agent may request;
(vii) an executed copy of the Sale and Servicing Agreement, the Indenture, the Custodial Agreement, the Lockbox Agreement, the Trust Agreement and the Master Sale and Contribution Agreement;
(viii) evidence satisfactory to the Administrative Agent that financing statements duly executed by a Responsible Officer of AmeriCredit, the signing Loan PartyIssuer and AFC or other, each dated similar instruments or documents, as of the Effective Date (may be necessary or, in the case opinion of the Administrative Agent or any Agent or Class A Purchaser, desirable under the Uniform Commercial Code of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Related Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid; and
(ix) counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the Issuer, the Sellers, the Servicer, the Administrative Agent and Noteholders representing the Required Class A Owners and Required Class A Purchasers; and
(x) such additional documents, instruments, certificates of governmental officialsor letters as the Administrative Agent or any Agent or Class A Purchaser may reasonably request.
(d) the Class A Notes, a recent date the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes shall have been duly issued in accordance with the Sale and Servicing Agreement and the Indenture and the Reserve Account and Collateral Account shall have been established with the Trustee;
(e) the Sellers shall have paid all fees payable on or before the Effective Datedate of such borrowing to the Administrative Agent (for its own account or for the account of the initial Class A Purchasers and Agents) described in the Supplemental Fee Letters and each all reasonable and appropriately invoiced costs and expenses of the Administrative Agent and the initial Agents and Class A Purchasers payable by the Sellers, to the extent provided herein, in form connection with the transactions contemplated hereby;
(f) the Administrative Agent and substance reasonably the Agents shall have received the following:
(i) evidence satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement the initial Agent that the Class A Notes will continue to be rated AAA by S&P, that the Class B Notes are rated AA or higher by S&P, and an Affirmation Agreement from each Guarantor, as applicablethat the Class C Notes are rated A or higher by S&P;
(ii) such customary certificates a report by Ernst & Young on the results of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of a full operational audit performed by them which report is in form and substance satisfactory to each Loan Party 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;Agent; and
(iii) such documents and certifications (including, without limitation, Organizational Documents and good standing certificatesthe duly executed Class A Note(s) registered in the name of each Agent as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each nominee on behalf of the Borrower and the Guarantors is validly existing, Class A Owners in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and
(iv) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, including, with respect to the Mortgaged Properties, (i) delivery by the applicable Loan Parties of one or more mortgage amendments, supplements or restatements in form and substance reasonably satisfactory to the Administrative Agent with respect to the Mortgages, duly executed, acknowledged and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent).
(c) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(d) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying compliance with this Section 4.01(d).
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The Administrative Agent shall have received executed counterparts of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit LenderPurchaser Group.
(g) All fees and expenses due evidence satisfactory to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Effective Date shall have been paid. Without limiting the generality each initial CP Conduit that its purchase of Class A Notes hereunder will not result in a reduction or withdrawal of the provisions rating of Section 9.03its Commercial Paper Notes by Xxxxx’x, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon the Effective Date, the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement S&P or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewithnationally recognized rating agency rating its Commercial Paper Notes.
Appears in 1 contract
Conditions to Amendment and Restatement. The Existing Credit Agreement became effective following shall be conditions precedent to the effectiveness of the amendment and restatement of this Agreement:
(a) the representations and warranties of AFC, AmeriCredit and the Issuer set forth or referred to in Article 4 hereof shall be true and correct in all material respects on October 30, 2006 (the “Amendment and Restatement Effective Date”) as though made on and as of the Amendment and Restatement Effective Date (except for representations and warranties which relate to a specific date, which shall be true and correct as of such date), and no event which of itself or with the giving of notice or lapse of time, or both, would constitute a Termination Event shall have occurred and be continuing on the Closing Amendment and Restatement Effective Date;
(b) an amendment to the Supplemental Fee Letter shall have been executed and delivered by the Sellers to the Administrative Agent;
(c) the Administrative Agent and the Agents shall have received on or before the Amendment and Restatement Effective Date upon the following items, each of which shall be in form and substance satisfactory to the Agents:
(i) an Officer’s Certificate of AFC confirming the satisfaction of the conditions set forth in Section 4.01 thereof, clause (a) (as to representations and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon warranties of AFC only) above;
(ii) an Officer’s Certificate of AmeriCredit confirming the satisfaction of the following conditions precedent:
set forth in clause (a) The Administrative Agent(as to representations and warranties of AmeriCredit only) above;
(iii) an Officer’s receipt Certificate of the followingIssuer confirming the satisfaction of the conditions set forth in clause (a) (as to representations and warranties of the Issuer only) above;
(iv) a copy of (A) the charter and by-laws of, and an incumbency certificate with respect to its officers executing any of the Related Documents on the Amendment and Restatement Effective Date on behalf of, each of AmeriCredit and AFC, certified by its authorized officer, and (B) resolutions of the Board of Directors (or an authorized committee thereof) of each of AmeriCredit and AFC with respect to the Related Documents to which shall be originals it is party, certified by its authorized officer;
(v) a certificate issued no earlier than 30 days prior to the Amendment and Restatement Effective Date by an appropriate Governmental Authority evidencing the legal existence and good standing of each of AFC, the Issuer and AmeriCredit;
(vi) the favorable written opinions of counsel for AFC, AmeriCredit and the Issuer, addressed to the Administrative Agent and each Agent and Class S Purchaser, or facsimiles (followed promptly accompanied by originals) unless otherwise specifieda letter providing that the Administrative Agent and each Agent and Class S Purchaser may rely on such opinions as if they were addressed to them, and dated the Amendment and Restatement Effective Date, covering general corporate matters, the due execution and delivery of, and the enforceability of, each properly of the Related Documents to which the AFC, AmeriCredit and the Issuer is party, true sale, bankruptcy, bank insolvency, security interest and tax matters and such other matters as the Administrative Agent or any Agent may request;
(vii) an executed copy of the Sale and Servicing Agreement, the Indenture, the Custodial Agreement, the Lockbox Agreement, the Trust Agreement and the Master Sale and Contribution Agreement;
(viii) evidence satisfactory to the Administrative Agent that financing statements duly executed by a Responsible Officer of AmeriCredit, the signing Loan PartyIssuer and AFC or other, each dated similar instruments or documents, as of the Effective Date (may be necessary or, in the case opinion of the Administrative Agent or any Agent or Class S Purchaser, desirable under the Uniform Commercial Code of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Related Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid;
(ix) counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the Issuer, the Sellers, the Servicer, the Administrative Agent and Noteholders representing the Required Class S Owners and Required Class S Purchasers; and
(x) such additional documents, instruments, certificates of governmental officialsor letters as the Administrative Agent or any Agent or Class S Purchaser may reasonably request.
(d) the Class A Notes, a recent date the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes shall have been duly issued in accordance with the Sale and Servicing Agreement and the Indenture and the Reserve Account and Collateral Account shall have been established with the Trustee;
(e) the Sellers shall have paid all fees payable on or before the Amendment and Restatement Effective DateDate to the Administrative Agent (for its own account or for the account of the initial Class S Purchasers and Agents) described in the Supplemental Fee Letters and each all reasonable and appropriately invoiced costs and expenses of the Administrative Agent and the initial Agents and Class S Purchasers payable by the Sellers, to the extent provided herein, in form connection with the transactions contemplated hereby;
(f) the Administrative Agent and substance reasonably the Agents shall have received the following:
(i) evidence satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement the initial Agent that the Class A Notes will continue to be rated AAA by S&P, that the Class B Notes are rated AA or higher by S&P, and an Affirmation Agreement from each Guarantor, as applicablethat the Class C Notes are rated A or higher by S&P;
(ii) such customary certificates a report by Ernst & Young on the results of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of a full operational audit performed by them which report is in form and substance satisfactory to each Loan Party 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;Agent; and
(iii) such documents and certifications (including, without limitation, Organizational Documents and good standing certificatesthe duly executed Class S Note(s) registered in the name of each Agent as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each nominee on behalf of the Borrower and the Guarantors is validly existing, Class S Owners in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and
(iv) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, including, with respect to the Mortgaged Properties, (i) delivery by the applicable Loan Parties of one or more mortgage amendments, supplements or restatements in form and substance reasonably satisfactory to the Administrative Agent with respect to the Mortgages, duly executed, acknowledged and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent).
(c) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(d) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying compliance with this Section 4.01(d).
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The Administrative Agent shall have received executed counterparts of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit LenderPurchaser Group.
(g) All fees and expenses due evidence satisfactory to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Effective Date shall have been paid. Without limiting the generality each initial CP Conduit that its purchase of Class S Notes hereunder will not result in a reduction or withdrawal of the provisions rating of Section 9.03its Commercial Paper Notes by Xxxxx’x, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon the Effective Date, the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement S&P or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewithnationally recognized rating agency rating its Commercial Paper Notes.
Appears in 1 contract
Conditions to Amendment and Restatement. The Existing Credit Agreement became effective on the Closing Date upon satisfaction of the conditions set forth in Section 4.01 thereof, and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies or in “pdf” or similar format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and an Affirmation Agreement in sufficient number for distribution to the Administrative Agent, from each Guarantor, as applicableAmended and Restated Lender and each Borrower;
(ii) an amended and restated Note executed by each applicable Borrower in favor of each Amended and Restated Lender requesting an amended and restated Note;
(iii) (A) a consent and affirmation agreement in respect of the U.S. Guaranty and the U.S. Security Agreement, duly executed by each U.S. Loan Party and (B) a consent and affirmation agreement in respect of the Canadian Guaranty and the Canadian Security Agreement, duly executed by each Canadian Loan Party;
(iv) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iiiv) such documents and certifications (including, without limitation, Organizational Documents and good standing certificates) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be do so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and;
(ivvi) an a favorable opinion of FriedWeil, Frank, Harris, Xxxxxxx Gotshal & Xxxxxxxx Xxxxxx LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, includingRequired Lenders, with respect to such matters concerning the Mortgaged Properties, Loan Parties and the Loan Documents as the Required Lenders may reasonably request (i) delivery by the including enforceability of this Agreement and other applicable Loan Documents, no violation of certain laws and regulations and continued perfection of the Administrative Agent’s Liens in the Collateral);
(vii) a favorable opinion of Xxxxxx Xxxxxx Gervais LLP, or such other local counsel to the Loan Parties of one or more mortgage amendmentsin Canada, supplements or restatements addressed to the Administrative Agent and each Canadian Lender, in form and substance reasonably satisfactory to the Administrative Agent Required Lenders, with respect to such matters concerning the Mortgages, duly executed, acknowledged Canadian Loan Parties and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance Canadian Loan Documents as the Required Lenders may reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent).request;
(cviii) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(d) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from signed by a Responsible Officer of each of the Specified U.S. Borrower and the Canadian Borrower certifying compliance with this Section 4.01(d(A) that the conditions specified in SectionsSection 4.02(a), (b) and (d) have been satisfied and (B) certifying as to the matters set forth in SectionsSection 4.01(c); and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lenders or any Lender reasonably may require.
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all All accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (required to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The Administrative Agent shall have received executed counterparts of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit Lender.
(g) All fees and expenses due paid to the Administrative Agent, the Arrangers Collateral Agent (including the fees and expenses of counsel (including any local counsel) for the Administrative Agent and the Lenders Collateral Agent) and the Original Bookrunner on or before the Effective Date shall have been paid and (ii) all fees required to be paid to the Amended and Restated Lenders on or before the Effective Date shall have been paid. Without limiting the generality .
(c) Receipt of the provisions of Section 9.03all governmental, for purposes of determining compliance shareholder and third party consents and approvals necessary in connection with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Amendment and Restatement.
(d) The Lenders shall have received notice from all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(e) To the extent that any Existing Lender shall be a Non-Continuing Lender, such Non-Continuing Lender prior shall be replaced (and the Commitments and Loans of such Non-Continuing Lender shall be assumed) by one or more Amended and Restated Lenders or additional Lenders pursuant to Section 11.13 of the proposed Effective Date specifying its objection theretoExisting Credit Agreement. Upon the Effective Date, the terms and conditions condition of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewith. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or reasonably satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Nortek Inc)
Conditions to Amendment and Restatement. The Existing Credit Agreement became effective following shall be conditions precedent to the effectiveness of the amendment and restatement of this Agreement:
(a) the representations and warranties of AFC, AmeriCredit and the Issuer set forth or referred to in Article 4 hereof shall be true and correct in all material respects on October 30, 2006 (the “Amendment and Restatement Effective Date”) as though made on and as of the Amendment and Restatement Effective Date (except for representations and warranties which relate to a specific date, which shall be true and correct as of such date), and no event which of itself or with the giving of notice or lapse of time, or both, would constitute a Termination Event shall have occurred and be continuing on the Closing Amendment and Restatement Effective Date;
(b) an amendment to the Supplemental Fee Letter shall have been executed and delivered by the Sellers to the Administrative Agent; and
(c) the Administrative Agent and the Agents shall have received on the Amendment and Restatement Effective Date upon the following items, each of which shall be in form and substance satisfactory to the Agents:
(i) an Officer’s Certificate of AFC confirming the satisfaction of the conditions set forth in Section 4.01 thereof, clause (a) (as to representations and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon warranties of AFC only) above;
(ii) an Officer’s Certificate of AmeriCredit confirming the satisfaction of the following conditions precedent:
set forth in clause (a) The Administrative Agent(as to representations and warranties of AmeriCredit only) above;
(iii) an Officer’s receipt Certificate of the followingIssuer confirming the satisfaction of the conditions set forth in clause (a) (as to representations and warranties of the Issuer only) above;
(iv) a copy of (A) the charter and by-laws of, and an incumbency certificate with respect to its officers executing any of the Related Documents on the Amendment and Restatement Effective Date on behalf of, each of AmeriCredit and AFC, certified by its authorized officer, and (B) resolutions of the Board of Directors (or an authorized committee thereof) of each of AmeriCredit and AFC with respect to the Related Documents to which shall be originals it is party, certified by its authorized officer;
(v) a certificate issued no earlier than 30 days prior to the Amendment and Restatement Effective Date by an appropriate Governmental Authority evidencing the legal existence and good standing of each of AFC, the Issuer and AmeriCredit;
(vi) the favorable written opinions of counsel for AFC, AmeriCredit and the Issuer, addressed to the Administrative Agent and each Agent and Class B Purchaser, or facsimiles (followed promptly accompanied by originals) unless otherwise specifieda letter providing that the Administrative Agent and each Agent and Class B Purchaser may rely on such opinions as if they were addressed to them, and dated the Amendment and Restatement Effective Date, covering general corporate matters, the due execution and delivery of, and the enforceability of, each properly of the Related Documents to which the AFC, AmeriCredit and the Issuer is party, true sale, bankruptcy, bank insolvency, security interest and tax matters and such other matters as the Administrative Agent or any Agent may request;
(vii) an executed copy of the Sale and Servicing Agreement, the Indenture, the Custodial Agreement, the Lockbox Agreement, the Trust Agreement and the Master Sale and Contribution Agreement;
(viii) evidence satisfactory to the Administrative Agent that financing statements duly executed by a Responsible Officer of AmeriCredit, the signing Loan PartyIssuer and AFC or other, each dated similar instruments or documents, as of the Effective Date (may be necessary or, in the case opinion of the Administrative Agent or any Agent or Class B Purchaser, desirable under the Uniform Commercial Code of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Related Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid;
(ix) counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the Issuer, the Sellers, the Servicer, the Administrative Agent and Noteholders representing the Required Class B Owners and Required Class B Purchasers; and
(x) such additional documents, instruments, certificates of governmental officialsor letters as the Administrative Agent or any Agent or Class B Purchaser may reasonably request.
(d) the Class A Notes, a recent date the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes shall have been duly issued in accordance with the Sale and Servicing Agreement and the Indenture and the Reserve Account and Collateral Account shall have been established with the Trustee;
(e) the Sellers shall have paid all fees payable on or before the Effective Datedate of such borrowing to the Administrative Agent (for its own account or for the account of the initial Class B Purchasers and Agents) described in the Supplemental Fee Letters and each all reasonable and appropriately invoiced costs and expenses of the Administrative Agent and the initial Agents and Class B Purchasers payable by the Sellers, to the extent provided herein, in form connection with the transactions contemplated hereby;
(f) the Administrative Agent and substance reasonably the Agents shall have received the following:
(i) evidence satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement the initial Agent that the Class A Notes will continue to be rated AAA by S&P, that the Class B Notes are rated AA or higher by S&P, and an Affirmation Agreement from each Guarantor, as applicablethat the Class C Notes are rated A or higher by S&P;
(ii) such customary certificates a report by Ernst & Young on the results of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of a full operational audit performed by them which report is in form and substance satisfactory to each Loan Party 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 Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;Agent; and
(iii) such documents and certifications (including, without limitation, Organizational Documents and good standing certificatesthe duly executed Class B Note(s) registered in the name of each Agent as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each nominee on behalf of the Borrower and the Guarantors is validly existing, Class B Owners in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and
(iv) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, including, with respect to the Mortgaged Properties, (i) delivery by the applicable Loan Parties of one or more mortgage amendments, supplements or restatements in form and substance reasonably satisfactory to the Administrative Agent with respect to the Mortgages, duly executed, acknowledged and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent).
(c) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(d) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying compliance with this Section 4.01(d).
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The Administrative Agent shall have received executed counterparts of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit LenderPurchaser Group.
(g) All fees and expenses due evidence satisfactory to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Effective Date shall have been paid. Without limiting the generality each initial CP Conduit that its purchase of Class B Notes hereunder will not result in a reduction or withdrawal of the provisions rating of Section 9.03its Commercial Paper Notes by Xxxxx’x, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon the Effective Date, the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement S&P or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewithnationally recognized rating agency rating its Commercial Paper Notes.
Appears in 1 contract
Conditions to Amendment and Restatement. The Existing Credit Agreement became effective on the Closing Date upon satisfaction of the conditions set forth in Section 4.01 thereof, and the Existing Credit Agreement shall be amended and restated in its entirety as set forth herein upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies or in “pdf” or similar format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and an Affirmation Agreement in sufficient number for distribution to the Administrative Agent, from each Guarantor, as applicableAmended and Restated Lender and each Borrower;
(ii) an amended and restated Note executed by each applicable Borrower in favor of each Amended and Restated Lender requesting an amended and restated Note;
(iii) (A) a consent and affirmation agreement in respect of the U.S. Guaranty and the U.S. Security Agreement, duly executed by each U.S. Loan Party and (B) a consent and affirmation agreement in respect of the Canadian Guaranty and the Canadian Security Agreement, duly executed by each Canadian Loan Party;
(iv) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iiiv) such documents and certifications (including, without limitation, Organizational Documents and good standing certificates) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be do so qualified could not reasonably be expected to have a Material Adverse Effect; provided that to the extent any charter documents delivered by any then existing Loan Party pursuant to Section 4.01 of the Existing Credit Agreement on the Closing Date shall not have been amended or otherwise modified since the Closing Date, the applicable Loan Party may certify to no such change in lieu of redelivering such documents; and;
(ivvi) an a favorable opinion of FriedWeil, Frank, Harris, Xxxxxxx Gotshal & Xxxxxxxx Xxxxxx LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent.
(b) All actions, recordings and filings, if any, of or with respect to the Security Agreement, the Mortgages and the other Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to insure continued perfection and protection of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, includingRequired Lenders, with respect to such matters concerning the Mortgaged Properties, Loan Parties and the Loan Documents as the Required Lenders may reasonably request (i) delivery by the including enforceability of this Agreement and other applicable Loan Documents, no violation of certain laws and regulations and continued perfection of the Administrative Agent's Liens in the Collateral);
(vii) a favorable opinion of Xxxxxx Xxxxxx Gervais LLP, or such other local counsel to the Loan Parties of one or more mortgage amendmentsin Canada, supplements or restatements addressed to the Administrative Agent and each Canadian Lender, in form and substance reasonably satisfactory to the Administrative Agent Required Lenders, with respect to such matters concerning the Mortgages, duly executed, acknowledged Canadian Loan Parties and delivered by a duly authorized officer of each party thereto, in form suitable for filing and recording in all applicable filing or recording offices and (ii) fully-paid title searches and update endorsements to the Administrative Agent’s Mortgage Policies, each in form and substance Canadian Loan Documents as the Required Lenders may reasonably satisfactory to the Administrative Agent (the “Mortgage Deliverables”) (it being understood that if any such Mortgage Deliverable is not delivered on the Effective Date after the Loan Parties’ use of commercially reasonable efforts to deliver such Mortgage Deliverable, then delivery of such Mortgage Deliverable shall not constitute a condition to the Effective Date but shall instead be delivered within 45 days following the Effective Date (or such longer time as may be agreed by the Administrative Agent).request;
(cviii) The Administrative Agent shall have received a certificate from the Chief Financial Officer of Holdings, in substantially the form of the solvency certificate delivered on the Closing Date pursuant to Section 4.01 of the Existing Credit Agreement, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term B Loans and any Restricted Payment made pursuant to Section 7.06(j)), are Solvent.
(d) The conditions set forth in Section 4.02 shall have been satisfied on and as of the Effective Date, immediately before and after giving effect to the Amendment and Restatement and the other transactions contemplated hereby (including the incurrence of the Term Loans and any Restricted Payment made pursuant to Section 7.06(j)), and the Administrative Agent shall have received a certificate from signed by a Responsible Officer of each of the Specified U.S. Borrower and the Canadian Borrower certifying compliance with this Section 4.01(d(A) that the conditions specified in Sections 4.02(a),(b) and (d) have been satisfied and (B) certifying as to the matters set forth in Sections 4.01(c); and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lenders or any Lender reasonably may require.
(e) The Borrower shall have paid to the Existing Administrative Agent, for the ratable account of the Existing Term B Lenders, (i) all All accrued and unpaid interest, fees and expenses in respect of the Existing Term B Loans of such Existing Term B Lenders (required to the extent due and payable under the Existing Credit Agreement as of the Effective Date) and (ii) the prepayment premium pursuant to Section 2.05(a)(i) of the Existing Credit Agreement.
(f) The Administrative Agent shall have received executed counterparts of this Agreement, each of which shall be originals or facsimiles (followed promptly by originals), from each of (i) the “Required Lenders” under the Existing Credit Agreement, (ii) each Term B Lender with a Term B Commitment on Schedule 2.01 hereto and (iii) each Extending Revolving Credit Lender.
(g) All fees and expenses due paid to the Administrative Agent, the Arrangers Collateral AgentsAgent (including the fees and expenses of counsel (including any local counsel) for the Administrative Agent and the Lenders Collateral AgentsAgent) and the BookrunnersBookrunner on or before the Effective Date shall have been paid and (ii) all fees required to be paid to the Amended and Restated Lenders on or before the Effective Date shall have been paid. Without limiting the generality .
(c) Receipt of the provisions of Section 9.03all governmental, for purposes of determining compliance shareholder and third party consents and approvals necessary in connection with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Amendment and Restatement.
(d) The Lenders shall have received notice from all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(e) To the extent that any Existing Lender shall be a Non-Continuing Lender, such Non-Continuing Lender prior shall be replaced (and the Commitments and Loans of such Non-Continuing Lender shall be assumed) by one or more Amended and Restated Lenders or additional Lenders pursuant to Section 11.13 of the proposed Effective Date specifying its objection theretoExisting Credit Agreement. Upon the Effective Date, the terms and conditions condition of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety. This Agreement shall not in any way release or impair the rights, duties, obligations, Guaranties or Liens created pursuant to the Existing Credit Agreement or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Effective Date, except as specifically modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, obligations, Guaranties and Liens are assumed, ratified and affirmed by each of the Loan Parties. The Guaranties, Liens and security granted in favor of the Secured Parties pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue without any diminution thereof and shall remain in full force and effect on and after the Effective Date, except as specifically modified by the terms hereof or in connection herewith. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or reasonably satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Nortek Inc)
