Restatement Date. The initial Borrowing following the Restatement Date is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that: (a) The Lender shall have received executed counterparts of each of the following: (i) this Agreement; (ii) the Note; (iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender; (iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, as attached thereto, of the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing; (v) a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and (vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the Lender. (b) The Lender shall have received all fees and other amounts due and payable on or before the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii), to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. (c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6. (d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date. (e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect. (f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing. (g) The Lender shall have received: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Report. (h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower shall have provided to the Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Restatement Date. (i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 3 contracts
Sources: Credit Agreement (Piper Sandler Companies), Credit Agreement (Piper Sandler Companies), Credit Agreement (Piper Sandler Companies)
Restatement Date. The initial Borrowing This Agreement shall become effective (as of the date first written above) only upon the satisfaction of all of the following the Restatement Date is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that:
(a) The Lender Administrative Agent shall have received executed counterparts of each all of the following, each dated as of the Restatement Date (unless otherwise specified or unless the Administrative Agent otherwise agrees) and all in form and substance satisfactory to the Administrative Agent and legal counsel for the Administrative Agent:
(i) this Agreement;
(ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying signed by a Designated Officer (A) stating that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, as attached thereto, of the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents by the Borrower was duly authorized by resolution of its board of directors on the date therein specified and that such authorization is still in force and effect, (B) setting forth such resolution adopted by such board of directors, (C) setting forth the name of each person authorized to sign any Loan Document to which it is a partyon behalf of the Borrower with specimen signatures of such persons, and (D) stating that the representations and warranties contained in Section 5 are true and correct on and as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent dateRestatement Date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or an Event of Default has occurred and is continuing continuing, and the Borrower shall be in compliance with all the terms and provisions of the Loan Documents;
(Bii) a current good standing certificate for the representations and warranties Borrower issued by the appropriate Governmental Agency in Article V are the jurisdiction of incorporation;
(1iii) with respect to any representations or warranties that contain a materiality qualifier, true and correct certificate of good standing of the Borrower as a foreign corporation in all respects California;
(iv) a favorable written opinion of counsel for the Borrower dated as of the Restatement Date and satisfactory to Administrative Agent and as to such date, except matters as Administrative Agent acting on behalf of the Banks may reasonably request;
(v) a favorable written opinion of counsel for the Administrative Agent dated as of the Restatement Date and satisfactory to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on Borrower and as of to such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects matters as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; andBorrower may reasonably request;
(vi) a written opinion of the counsel to the Borrowersuch other certificates, addressed to the Lender and otherwise in form and substance satisfactory to the Lender.documents, consents, or opinions that any Bank may reasonably request; and
(b) The Lender Administrative Agent shall have received all fees and other amounts due and payable on or before received, for the Restatement Date, including without limitation account of the Banks:
(i) with respect to each Bank that was a party to the fees specified in Original Credit Agreement, an upfront fee equal to the Fee Lettersum of (A) 0.010% of such Bank’s Original Commitment, and (B) 0.020% of the amount by which such Bank’s Commitment exceeds such Bank’s Original Commitment; and
(ii) any other fees agreed with respect to by the Borrower and the Lender from time to time, and (iii), each Bank that was not a party to the extent invoicedOriginal Credit Agreement, reimbursement or payment an upfront fee equal to 0.020% of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereundersuch Bank’s Commitment.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender Joint Lead Arrangers shall have received: (i) a compliance certificate substantially in , for their own account, an arrangement fee as agreed upon between the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Report.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement DateBorrower, the Borrower shall have provided to Administrative Agent, the Lender Joint Lead Arrangers and the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Restatement DateSyndication Agent.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Avery Dennison Corporation), Revolving Credit Agreement (Avery Dennison Corporation)
Restatement Date. The initial Borrowing following amendment and restatement of the Existing Credit Agreement in the form of this Agreement pursuant to the Amendment and Restatement Date Agreement is subject to the conditions precedent, unless waived by satisfaction of the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), thatfollowing conditions:
(a) The Lender Administrative Agent shall have received, on behalf of itself, the Lenders and the Issuing Bank, a favorable written opinion of (i) the General Counsel or Assistant General Counsel of the U.S. Borrower, in form and substance reasonably satisfactory to the Administrative Agent, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Holdings and the Borrowers, in form and substance reasonably satisfactory to the Administrative Agent and (iii) each foreign counsel listed on Schedule 4.02(a), in form and substance reasonably satisfactory to the Administrative Agent, in each case (x) dated on the Restatement Date, (y) addressed to the Issuing Bank, the Administrative Agent and the Lenders and (z) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrowers hereby request such counsel to deliver such opinions.
(b) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
a copy of the certificate, articles of incorporation or partnership agreement (ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”or comparable organizational document), between the Borrower and the Lender;
(iv) a certificate including all amendments thereto, of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrowereach Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental comparable entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylawsgood standing (where such concept is applicable) of each Loan Party as of a recent date, as attached thereto, from such Secretary of State (or comparable entity); (ii) a certificate of the Borrower Secretary or Assistant Secretary of each Loan Party dated on the Restatement Date and certifying (w) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Restatement Date and at all times since a date prior to the date of such certificationthe resolutions described in clause (x) below, (Cx) as to that attached thereto is a true and complete copy of resolutions duly adopted by the Board of the board Directors or partners (or comparable governing body) of directors of the Borrower such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it such person is a partyparty and, in the case of the Borrowers, the borrowings hereunder, and authorized that such resolutions have not been modified, rescinded or amended and are in full force and effect, (y) that the certificate, articles of incorporation or partnership agreement (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to request clause (i) above and (z) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a Borrowing;certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(vc) The Administrative Agent shall have received a certificate, dated on or shortly prior to the Restatement and signed by an Authorized a Responsible Officer of the U.S. Borrower, stating that on Restatement Date confirming compliance with the conditions precedent set forth in paragraph (Af) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; andthis Section 4.02.
(vid) The Administrative Agent shall have received a written opinion certificate of the counsel to the Borrowera Financial Officer of Holdings, addressed to the Lender and otherwise in form and substance reasonably satisfactory to the LenderAdministrative Agent, to the effect that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby, are solvent.
(be) The Lender Administrative Agent shall have received all fees Fees, and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoicedinvoiced two days prior to the Restatement Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunderBorrowers hereunder or under any other Loan Document.
(ci) The Lender representations and warranties set forth in Article III shall have received evidence be true and correct in formall material respects on the Restatement Date with the same effect as though made on and as of such date, scope and substance reasonably satisfactory except to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual extent such representations and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower warranties expressly relate to an earlier date and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender no Default or Event of Default shall have received evidence of all governmental, equity holder occurred and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowingcontinuing.
(g) The Lender Existing Term Loan Refinancing shall have received: occurred (i) a compliance certificate or shall occur substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance concurrently with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations)Date) and immediately after giving effect to the Transactions, (ii) such information as including the Lender reasonably requests Senior Notes Offering and the Existing Term Loan Refinancing referred to confirm the taxin this paragraph, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower Holdings and its Subsidiaries shall have outstanding no Indebtedness for the fiscal quarter ended September 30borrowed money, 2022Hedge Agreements or preferred stock other than (a) Indebtedness outstanding under this Agreement, (ivb) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 Senior Notes and (vc) the most recent FOCUS ReportIndebtedness set forth on Schedule 6.01(a).
(h) Upon The Administrative Agent and the reasonable request of the Lender made Lenders shall have received, at least 10 days before five Business Days prior to the Restatement Date, the Borrower shall have provided to the Lender the all documentation and other information so reasonably requested in connection with by them that is required by regulatory authorities under applicable “know your customer” and anti-money-money laundering Lawsrules and regulations, including the USA PATRIOT Act, in each case at least five days before the Restatement Date.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Cbre Group, Inc.)
Restatement Date. The initial Borrowing This Agreement shall not become effective until the date on which each of the following the Restatement Date is subject to the conditions precedent, unless shall have been satisfied (or waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that:in accordance with Section 10.08):
(a) The Lender Administrative Agent (or its counsel) shall have received executed counterparts of from each of the following:
party hereto either (i) a counterpart of this Agreement;
Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Note;Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(iiib) the fee letter agreement, The Administrative Agent shall have received favorable written opinions (each dated as of December 20the Restatement Date and addressed to the Administrative Agent and the Lenders) of (i) the general counsel of the Company, 2022 substantially in the form of Exhibit D-1 hereto and (ii) Kirkpatrick & Lockhart LLP, counsel for the “Fee Letter”Company, ▇▇▇▇▇▇▇▇▇▇lly ▇▇ ▇▇▇ form of Exhibit D-2 hereto, covering such other matters relating to the Company, this Agreement and the Transactions as the Administrative Agent or its counsel shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or such other analogous documents), between the Borrower and the Lender;
(iv) a certificate including all amendments thereto, of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the BorrowerCompany, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organizationDelaware, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylaws, as attached thereto, good standing of the Borrower Company as of a recent date, from the Secretary of State of Delaware; (ii) a certificate of the Secretary or Assistant Secretary of the Company dated the Restatement Date certifying (A) that attached thereto is a true and complete copy of the by-laws of the Company as in effect on the Restatement Date and at all times since a date prior to the date of such certification, (C) as to the resolutions of the board Company described in item (B) below, (B) that attached thereto is a true and complete copy of directors resolutions adopted by the Board of Directors of the Borrower Company authorizing the execution, delivery and performance of each Loan Document this Agreement and the borrowings hereunder by the Company, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of the Company have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to which it is a partyclause (i) above, and (D) as to the incumbency and specimen signature of each officer of the Company executing this Agreement or any other document delivered in connection herewith; (iii) a good standing certificate of another officer of the Company as to the incumbency and signature of the Secretary or such Assistant Secretary of the Company executing the certificate pursuant to (ii) above; and (iv) such other documents as the Lenders or analogous documentation if applicable) counsel for the Borrower from the Secretary of State Administrative Agent may reasonably request.
(or analogous governmental entityd) The Administrative Agent shall have received a certificate of the jurisdiction of its organization as of a recent dateCompany, to dated the extent generally available in such jurisdiction Restatement Date and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized a Financial Officer of the BorrowerCompany, stating that on Restatement Date confirming compliance with the conditions precedent set forth in paragraphs (Ab) no Default or Event of Default has occurred and is continuing and (Bc) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the LenderSection 4.03.
(be) The Lender Administrative Agent shall have received all fees and other amounts due and payable on or before the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed prior to by the Borrower and the Lender from time to time, and (iii), to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to All outstanding loans under the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender Original Agreement shall have received: (i) a compliance certificate substantially in been repaid and all interest, fees and other amounts due to or accrued for the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as accounts of the Restatement Date without attaching any financial data or computations), (ii) such information as Lenders under the Lender reasonably requests to confirm Original Agreement shall have been paid. The Administrative Agent shall notify the tax, legal, Company and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements the Lenders of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Report.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, and such notice shall be conclusive and binding. Notwithstanding the Borrower shall have provided foregoing and any other provision herein to the Lender contrary, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Lawsobligations of the Lenders to make Loans to any Borrower hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.08) at or prior to 2:00 p.m., including the PATRIOT ActNew York City time, on August 29, 2003 (and, in each case the event such conditions are not so satisfied or waived, the Commitments shall terminate at least five days before the Restatement Datesuch time).
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing following effectiveness of the Restatement Date amendment and restatement of the Existing Credit Agreement is subject to the conditions precedent, unless waived by satisfaction of the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), thatfollowing conditions:
(a) The Lender General Administrative Agent (or its counsel) shall have received executed counterparts of from each of the following:
party hereto either (i) a counterpart of this Agreement;
Agreement signed on behalf of such party or (ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, as attached thereto, of the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance evidence satisfactory to the LenderGeneral Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Lender General Administrative Agent shall have received, with a counterpart or copy for each Lender, such documents and certificates as the General Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Borrower, the authorization of the Transactions and other legal matters relating to the Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the General Administrative Agent and its counsel.
(c) The representations and warranties of each Borrower set forth in the Loan Documents shall be true and correct on and as of the Restatement Date, except to the extent such representations and warranties expressly relate to an earlier or later date and no Default shall have occurred and be continuing, and the General Administrative Agent shall have received, with a counterpart or copy for each Lender, a certificate signed by the President, a Vice President or a Financial Officer of the Company confirming the foregoing.
(d) The General Administrative Agent shall have received all fees and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the any Borrower hereunderhereunder or under any Loan Document.
(ce) The Lender General Administrative Agent (or its counsel) shall have received evidence a favorable written opinion (addressed to the General Administrative Agent and the Lenders and dated the Restatement Date) from B▇▇▇▇ & D▇▇▇▇▇▇ LLP, U.S. counsel for the Borrowers, substantially in formthe form of Exhibit C and covering such other matters relating to the Borrowers, scope the Loan Documents or the Transactions as the General Administrative Agent or the Lenders shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(f) The General Administrative Agent shall have received updated schedules to the Existing Credit Agreement, in form and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower General Administrative Agent and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowingcounsel.
(g) The Lender Substantially simultaneous with the initial Borrowings to be made on the Restatement Date (in respect of which the General Administrative Agent and the Applicable Administrative Agent shall have received: received one or more Borrowing Requests in accordance with Section 2.03), (i) a compliance certificate substantially the commitments under the Existing Credit Agreement shall be terminated (and all loans (if any) outstanding thereunder and other amounts due in the form of Exhibit A attached hereto (which certificate may state respect thereof paid in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computationsfull), and (ii) such information as the Lender reasonably requests Borrowers shall pay to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements Administrative Agents for the accounts of the Borrower lenders and its Subsidiaries for issuing lenders entitled thereto all accrued fees and expenses payable under the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of Existing Credit Agreement to but excluding the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS ReportRestatement Date.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower The Lenders shall have provided received, to the Lender the extent requested, all documentation and other information so requested in connection with required by regulatory authorities under applicable “know your customer” and anti-money-money laundering Lawsrules and regulations, including the PATRIOT U.S.A. Patriot Act, in each case at least five days before the Restatement Date.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing following Agreement and the obligations of the Lenders to make the extensions of credit to be made hereunder and to perform the other transactions required to be performed on the Restatement Date shall not become effective until the date on which each of the following express conditions is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), thator waived:
(a) The Lender Each Administrative Agent (or its counsel) shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying received: (A) that there have been no changes in the charter document from each party hereto counterparts of the Borrowerthis Agreement signed on behalf of such party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entitytogether with all Schedules hereto, (B) as to the bylaws, as attached thereto, from each party thereto executed counterparts of the Borrower as in effect on the date of such certificationa Successor Collateral Agent Agreement and Guaranty Reaffirmation, (C) as to resolutions from the Borrower, a Note executed by the Borrower for each Lender that requests such a Note at least three Business Days in advance of the board of directors of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a partyRestatement Date, (D) as with respect to each Loan Party, UCC-1 or UCC-3 financing statements in a good standing certificate (or analogous documentation if applicable) form appropriate for filing in the Borrower from the Secretary state of State (or analogous governmental entity) organization of the jurisdiction of its organization as of a recent datesuch Loan Party, to the extent generally available in such jurisdiction and (E) executed IP Security Agreements as required pursuant to the names Collateral Agreement, (F) delivery of stock certificates for certificated Equity Interests of each material Domestic Restricted Subsidiary that constitutes Collateral, together with appropriate instruments of transfer endorsed in blank, (G) all agreements or instruments representing or evidencing the Collateral accompanied by instruments of transfer and true signatures stock powers undated and endorsed in blank and (H) the results of a search of the incumbent officers UCC filings and of such tax and judgment lien searches and such searches from the U.S. Patent and Trademark Office and the U.S. Copyright Office as reasonably requested by any Administrative Agent at least 3 Business Days prior to the Restatement Date, and copies of the Borrower authorized to sign the Loan Documents to which it is a partyfinancing statements (or similar documents) disclosed by such search; provided, and authorized to request a Borrowing;
(v) a certificatein each case, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation lien search, delivery of evidence of insurance, guarantee or warranty any Collateral or any security interests therein (including the creation or perfection of any security interest) (other than (x) grants of Collateral subject to the UCC that may be perfected by the filing of UCC financing statements and (y) the delivery of stock certificates for certificated stock of each Domestic Subsidiary that is stated not Excluded Property) is not or cannot be provided or perfected on the Restatement Date after the Borrower’s use of commercially reasonable efforts to relate solely to an earlier datedo so, in which case such representation without undue burden or warranty was true and correct in all respects on and as expense, the delivery of such earlier date lien search, evidence of insurance, guarantee and/or any Collateral (and (2perfecting of security interests therein) with respect to any representations or warranties that do shall not contain constitute a materiality qualifier, true and correct in all material respects as of such date, except condition precedent to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion availability of the counsel Initial Tranche A Term Loans, the Initial Tranche B Term Loans and the Revolving Borrowing on the Restatement Date but shall be required to the Borrower, addressed be delivered pursuant to the Lender and otherwise in form and substance satisfactory to the LenderSection 5.16.
(b) The Lender Each Administrative Agent shall have received all fees a customary written opinion (addressed to the Administrative Agents and other amounts due the Lenders and payable on or before dated the Restatement Date) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, including without limitation (i) the fees specified in the Fee LetterCalifornia, (ii) any other fees agreed to by the Borrower New York and the Lender from time to time, and (iii), to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender shall have received: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries Illinois counsel for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS ReportLoan Parties.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower shall have provided to the Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Restatement Date.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing following obligations of the Restatement Date is subject Lenders to make Loans to the Company hereunder shall not become effective until the date on which each of the following conditions precedent, unless shall have been satisfied (or waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that:in accordance with Section 10.08):
(a) The Lender Administrative Agent (or its counsel) shall have received executed counterparts of from each of the following:
party hereto either (i) a counterpart of this Agreement;
Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Note;Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(iiib) the fee letter agreement, The Administrative Agent shall have received favorable written opinions (each dated as of December 20the Restatement Date and addressed to the Administrative Agent and the Lenders) of (i) the general counsel of the Company, 2022 substantially in the form of Exhibit D-1 hereto and (ii) Kirkpatrick & Lockhart LLP, counsel for the “Fee Letter”Company, substantially ▇▇ th▇ ▇▇▇▇ ▇f Exhibit D-2 hereto, covering such other matters relating to the Company, this Agreement and the Transactions as the Administrative Agent or its counsel shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or such other analogous documents), between the Borrower and the Lender;
(iv) a certificate including all amendments thereto, of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the BorrowerCompany, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organizationDelaware, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylaws, as attached thereto, good standing of the Borrower Company as of a recent date, from the Secretary of State of Delaware; (ii) a certificate of the Secretary or Assistant Secretary of the Company dated the Restatement Date certifying (A) that attached thereto is a true and complete copy of the by-laws of the Company as in effect on the Restatement Date and at all times since a date prior to the date of such certification, (C) as to the resolutions of the board Company described in item (B) below, (B) that attached thereto is a true and complete copy of directors resolutions adopted by the Board of Directors of the Borrower Company authorizing the execution, delivery and performance of each Loan Document this Agreement and the borrowings hereunder by the Company, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of the Company have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to which it is a partyclause (i) above, and (D) as to the incumbency and specimen signature of each officer of the Company executing this Agreement or any other document delivered in connection herewith; (iii) a good standing certificate (or analogous documentation if applicable) for of another officer of the Borrower from Company as to the incumbency and signature of the Secretary of State (or analogous governmental entity) such Assistant Secretary of the jurisdiction of its organization as of a recent date, Company executing the certificate pursuant to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the Lender.
(b) The Lender shall have received all fees and other amounts due and payable on or before the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower above; and the Lender from time to time, and (iii), to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender shall have received: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of such other documents as the Borrower and its Subsidiaries Lenders or counsel for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS ReportAdministrative Agent may reasonably request.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower shall have provided to the Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Restatement Date.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing following the Restatement Date is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on On the Restatement Date), that:
(a) The Lender Administrative Agent (or its counsel) shall have received executed counterparts from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Restatement Date, favorable written opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, and (ii) ▇▇▇▇▇ Lord Bissell & Liddell LLP, special counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent (A) dated the Restatement Date, (B) addressed to each Issuing Bank on the Restatement Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the following:
(i) this Agreement;
(ii) to the Note;
(iii) extent not previously delivered to the fee letter Administrative Agent, a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, dated as including all amendments thereto, or other relevant constitutional documents under applicable law of December 20each Loan Party, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as case of a recent date corporation, certified by the Secretary of State (or analogous governmental entityother similar official) and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of the jurisdiction each such Loan Party as of its organization, since the a recent date from such Secretary of the certification thereof by such governmental entity, State (or other similar official) or (B) as in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Loan Party; and
(ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Restatement Date and certifying:
(A) that there have not been any changes to the bylawsby-laws (or partnership agreement, as attached theretomemorandum and articles of association, of the Borrower as in effect on the date limited liability company agreement or other equivalent governing documents) of such certification, Loan Party previously provided to the Administrative Agent except as otherwise attached to such certificate,
(CB) as to that attached thereto is a true and complete copy of resolutions of duly adopted by the board of directors (or equivalent governing body) of the Borrower such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of each the Loan Document Documents to which it such Person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Restatement Date,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to a good standing certificate the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(or analogous documentation if applicableE) as to the absence of any pending proceeding for the Borrower from the Secretary dissolution or liquidation of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent datesuch Loan Party or, to the extent generally available in knowledge of such jurisdiction Person, threatening the existence of such Loan Party.
(d) The Collateral and (E) the names and true signatures Guarantee Requirement with respect to items to be completed as of the incumbent officers of Restatement Date shall have been satisfied and the Borrower authorized to sign Administrative Agent shall have received a completed Perfection Certificate dated the Loan Documents to which it is a party, Restatement Date and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized a Responsible Officer of the Borrower, stating that on Restatement Date together with all attachments contemplated thereby, including the results of a search of the UCC (Aor equivalent under other similar law) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) filings made with respect to any representations or warranties that contain a materiality qualifier, true the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion copies of the counsel to the Borrower, addressed to the Lender financing statements (or similar documents) disclosed by such search and otherwise in form and substance evidence reasonably satisfactory to the LenderAdministrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released.
(be) The Lender Lenders shall have received the financial statements referred to in Section 3.05.
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(h) There has not been any Material Adverse Effect since December 31, 2011.
(i) The Agents shall have received all fees and payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Restatement Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunderLoan Parties hereunder or under any Loan Document.
(cj) The Lender shall have received evidence representations and warranties set forth in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding Article III shall be pending or, to the knowledge of any Loan Party, threatened true and correct in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender shall have received: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof all material respects on and as of the Restatement Date without attaching any financial data or computationsDate.
(k) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (f), (iih) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (vj) the most recent FOCUS Reportof this Section 4.02.
(hl) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower The Administrative Agent shall have provided to the Lender the received all documentation and other information so requested in connection required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money-money laundering Lawsrules and regulations, including without limitation the U.S. PATRIOT Act, in each case that has been reasonably requested by the Administrative Agent at least five 10 days before in advance of the Restatement Date.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing following the Restatement Date is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on On the Restatement Date), that:
(a) The Lender Administrative Agent shall have received, on behalf of itself, the Lenders and the Issuing Bank, a favorable written opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for Holdings and the Borrower, substantially to the effect set forth in Exhibit I (A) dated the Restatement Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower hereby request such counsel to deliver such opinion.
(b) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders and to the Administrative Agent.
(c) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate copy of the Secretary certificate or an Assistant Secretary articles of the Borrower certifying (A) that there have been no changes in the charter document incorporation or other equivalent document, including all amendments thereto, of the Borrowereach Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction state of its organization, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylawsgood standing of each Loan Party as of a recent date, as attached thereto, from such Secretary of State; (ii) a certificate of the Borrower Secretary or Assistant Secretary of each Loan Party dated the Restatement Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or other equivalent document of such Loan Party as in effect on the Restatement Date and (other than with respect to Holdings and the Borrower, each of which will adopt new by-laws effective on the Restatement Date) at all times since a date prior to the date of such certificationthe resolutions described in clause (B) below, (CB) as to that attached thereto is a true and complete copy of resolutions duly adopted by the Board of the board Directors or other equivalent body of directors of the Borrower such Loan Party authorizing the execution, delivery and performance of each the Loan Document Documents to which it such person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other equivalent document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above (other than with respect to Holdings, which will adopt a new certificate of incorporation effective on the Restatement Date, the form of which (or, if available, a copy certified by the Secretary of State) shall be attached to such certificate), and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a good standing certificate (or analogous documentation if applicable) for of another officer as to the Borrower from incumbency and specimen signature of the Secretary of State or Assistant Secretary executing the certificate pursuant to (or analogous governmental entityii) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction above; and (Eiv) such other documents as the names and true signatures of Lenders, the incumbent officers of Issuing Bank or the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;Administrative Agent may reasonably request.
(vd) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by an Authorized a Financial Officer of the Borrower, stating that on Restatement Date confirming compliance with the conditions precedent set forth in paragraphs (Ab) no Default or Event of Default has occurred and is continuing and (Bc) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the LenderSection 4.01.
(be) The Lender Administrative Agent shall have received received, or shall receive substantially simultaneously with the initial Borrowing of the Term Loans hereunder, all fees Fees and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations hereunder or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without under any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effectother Loan Document.
(f) No action, suit, investigation or proceeding The Amendment Agreement shall be pending or, to the knowledge of any Loan Party, threatened have become effective in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowingaccordance with its terms.
(g) The Lender Reaffirmation of Guarantee shall have received: (i) a compliance certificate substantially been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, full force and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Reporteffect.
(h) Upon Each of (i) the reasonable request Pledge Agreement, (ii) the Deed and Agreement of Pledge dated June 27, 2002, among AMI Acquisition LLC, AMI Acquisition II LLC and the Collateral Agent, (iii) the Chattel Mortgage dated January 20, 2001, between the Borrower and the Collateral Agent and (iv) the Share Mortgage dated October 31, 2002, between the Borrower and the Collateral Agent, shall be in full force and effect, and all the outstanding Equity Interests of the Lender made at least 10 days before Borrower and the Restatement DateSubsidiaries (other than Immaterial Subsidiaries) shall have been duly and validly pledged thereunder to the Collateral Agent for the ratable benefit of the Secured Parties and certificates representing such shares and interests, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent; provided that (i) neither the Borrower nor any Domestic Subsidiary shall have provided be required to pledge more than 65% of the Lender voting stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary or Immaterial Subsidiary shall be required to pledge the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Restatement Datecapital stock of any of its Subsidiaries.
(i) The Lender Security Agreement shall have received such other agreements, documents, instruments be in full force and certificates as are effect and each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Lender Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and its counselperfected first-priority security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent.
(i) Each of the Security Documents, in form and substance reasonably satisfactory to the Lender.Lenders, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02, (iii) each of such Security Documents shall have been filed and recorded in the recording office as specified on Schedule 3.19
Appears in 1 contract
Sources: Credit Agreement (Amis Holdings Inc)
Restatement Date. The initial Borrowing following the Restatement Date is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on On the Restatement Date), that:
(a) The Lender Agent shall have received, on behalf of itself, Lenders and Issuing Bank, a favorable written opinion of (i) O’Melveny & ▇▇▇▇▇ LLP, counsel for Borrowers and certain of their Subsidiaries, in form and substance reasonably satisfactory to Agent, and (ii) each local counsel listed on Schedule 9.2, in form and substance reasonably satisfactory to Agent, in each case (A) dated the Restatement Date, (B) addressed to Issuing Bank, Agents and Lenders and (C) covering such other matters relating to the Loan Documents and the Transactions as Agent shall reasonably request, and Borrowers hereby request such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the Loans and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to Lenders, Issuing Bank and Agents.
(c) Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation (ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”or other similar formation document), between the Borrower and the Lender;
(iv) a certificate including all amendments thereto, of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrowereach Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entityother similar official) (where such certification is available in the relevant Person’s jurisdiction of incorporation) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylawsgood standing (or similar concept, to the extent such concept has meaning in a relevant jurisdiction) of each Loan Party as attached theretoof a recent date, from such Secretary of State (or other similar official); (ii) a certificate of the Borrower Secretary or Assistant Secretary of each Loan Party dated the Restatement Date and certifying (A) that attached thereto is a true and complete copy of the by-laws, partnership agreement, limited liability company agreement (or other equivalent governing documents) of such Loan Party as in effect on the Restatement Date and at all times since a date prior to the date of such certificationthe resolutions described in clause (B) below, (CB) as to that attached thereto is a true and complete copy of resolutions duly adopted by the Board of the board Directors (or other equivalent governing body) of directors of the Borrower such Loan Party authorizing the execution, delivery and performance of each the Loan Document Documents to which it such person is a partyparty and, in the case of Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or other similar formation document) of such Loan Party has not been amended since the date of the last amendment thereto shown on the certificate of good standing (to the extent applicable) furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a good standing certificate (or analogous documentation if applicable) for of another officer as to the Borrower from incumbency and specimen signature of the Secretary of State or Assistant Secretary executing the certificate pursuant to clause (or analogous governmental entityii) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction above; and (Eiv) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a partysuch other documents as Lenders, and authorized to request a Borrowing;Issuing Bank or Agent may reasonably request.
(vd) Agents shall have received a Borrowing Base Certificate dated the Restatement Date, which shall be executed by a Responsible Officer of each Borrower.
(e) Agent shall have received a certificate, dated the Restatement Date and signed by an Authorized Officer a financial officer of the U.S. Borrower, stating that on Restatement Date certifying (Ai) no Default or Event of Default has occurred and is continuing compliance with the conditions precedent set forth in paragraphs (b) and (Bc) the representations of Section 9.1 and warranties in Article V are (1ii) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except after giving effect to the extent any such representation or warranty Transactions to occur on the Restatement Date, the Leverage Ratio is stated no more than 5.25 to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the Lender1.00.
(bf) The Lender Agents shall have received all fees and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii), to the extent invoiced, including in respect of reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations Borrowers hereunder or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without under any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any other Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any BorrowingDocument.
(g) The Lender Security Documents and the Intercreditor Agreement shall have received: (i) been duly executed by each Person that is to be a compliance certificate substantially party thereto and shall be in full force and effect on the Restatement Date. Each Collateral Agent, on behalf of the applicable Secured Parties, shall have a security interest in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as Collateral of the Restatement Date without attaching any financial data or computations)type and, (ii) such information as with respect to the Lender reasonably requests to confirm the taxU.S. Collateral, legal, and business assumptions made priority described in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Reporteach Security Document.
(h) Upon Agents shall have received a Perfection Certificate with respect to the reasonable request Loan Parties dated the Restatement Date and duly executed by a financial officer of Borrower Representative, and shall have received the results of a search of the Lender UCC filings (and/or PPSA or other equivalent filings) made at least 10 days before with respect to each Borrower and its Restricted Subsidiaries in the Restatement Date, the Borrower shall have provided to the Lender the documentation and states (or other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Actjurisdictions) of formation of such persons, in each case at least five days before as indicated on such Perfection Certificate, together with copies of the Restatement Datefinancing statements (or similar documents) or particulars of the registration disclosed by such search, and accompanied by evidence reasonably satisfactory to Collateral Agents that the Liens indicated in any such financing statement (or similar document) would be permitted under subsection 8.2.5 or have been or will be contemporaneously released or terminated.
(i) The Lender Each Collateral Agent (with respect to the applicable Borrowers and Restricted Subsidiaries) shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counselreceived, in form and substance reasonably satisfactory to the Lenderapplicable Collateral Agent and their counsel, duly executed lockbox, blocked account or similar agreements required by this Agreement.
(j) Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 6.1.2 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the applicable Collateral Agent as additional insured, in form and substance reasonably satisfactory to Agent and the applicable Collateral Agent.
Appears in 1 contract
Restatement Date. The initial Borrowing following obligations of the Restatement Date is subject to the conditions precedent, unless waived by the Lender (Tranche A Lenders and the BorrowerTranche B Lenders to make Tranche A Loans and Tranche B Loans, by executing this Agreementrespectively, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), thatand the effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction of the following conditions:
(a) The Lender Administrative Agent shall have received, on behalf of itself, the Lenders and the Issuing Bank, a favorable written opinion of (i) the General Counsel or Assistant General Counsel of the U.S. Borrower, substantially to the effect set forth in Exhibit F-1, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Holdings and the Borrowers, substantially to the effect set forth in Exhibit F-2, and (iii) each foreign counsel listed on Schedule 4.02(a), substantially to the effect set forth in Exhibit F-3, in each case (A) dated on or shortly prior to the Restatement Date, (B) addressed to the Issuing Bank, the Administrative Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrowers hereby request such counsel to deliver such opinions.
(b) To the extent requested, the Lenders shall have received executed counterparts of each of all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the following:USA PATRIOT Act.
(c) The Administrative Agent shall have received (i) this Agreement;
a copy of the certificate or articles of incorporation (ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”or comparable organizational document), between the Borrower and the Lender;
(iv) a certificate including all amendments thereto, of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrowereach Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental comparable entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylawsgood standing (where such concept is applicable) of each Loan Party as of a recent date, as attached thereto, from such Secretary of State (or comparable entity); (ii) a certificate of the Borrower Secretary or Assistant Secretary of each Loan Party dated on or shortly prior to the Restatement Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Restatement Date and at all times since a date prior to the date of such certificationthe resolutions described in clause (B) below, (CB) as to that attached thereto is a true and complete copy of resolutions duly adopted by the Board of the board Directors (or comparable governing body) of directors of the Borrower such Loan Party authorizing the execution, delivery and performance of each the Loan Document Documents to which it such person is a partyparty and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a good standing certificate (or analogous documentation if applicable) for of another officer as to the Borrower from incumbency and specimen signature of the Secretary of State or Assistant Secretary executing the certificate pursuant to clause (or analogous governmental entityii) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction above; and (Eiv) such other documents as the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;Administrative Agent may reasonably request.
(vd) The Administrative Agent shall have received a certificate, dated on or shortly prior to the Restatement Date and signed by an Authorized a Financial Officer of the U.S. Borrower, stating that on Restatement Date confirming compliance with the conditions precedent set forth in paragraph (Am) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the Lenderthis Section 4.02.
(be) The Lender Administrative Agent shall have received all fees Fees and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoicedinvoiced prior to the Restatement Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations Borrowers hereunder or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without under any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effectother Loan Document.
(f) No actionThe Security Documents, suitincluding the Reaffirmation Agreement and all other amendments and supplements to the Collateral Agreement required by Section 5.08, investigation or proceeding shall have been duly executed by each Loan Party that is to be a party thereto and shall be pending orin full force and effect on the Restatement Date, and all the outstanding Equity Interests of the U.S. Borrower and the Subsidiaries (other than Equity Interests of Foreign Subsidiaries with respect to which the U.S. Borrower has used commercially reasonable efforts to satisfy the following conditions) shall have been duly and validly pledged thereunder, to the knowledge extent required thereby, to the Collateral Agent for the ratable benefit of any Loan Partythe Secured Parties, threatened and certificates representing such Equity Interests, to the extent such Equity Interests are evidenced by certificated securities, accompanied by instruments of transfer and stock powers endorsed in any court blank, shall be in the actual possession of the Collateral Agent. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document upon completion of the filings or before any arbitrator or Governmental Authority that would reasonably be expected other actions referred to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowingtherein.
(g) The Lender Collateral Agent shall have received: (i) received a compliance certificate substantially in Perfection Certificate with respect to the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of Loan Parties dated the Restatement Date without attaching any financial data or computations), (ii) such information as and duly executed by a Responsible Officer of Holdings and the Lender reasonably requests to confirm the tax, legalU.S. Borrower, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to Holdings, the U.S. Borrower and its Subsidiaries for the fiscal quarter ended September 30Subsidiary Guarantors in the states of organization of such persons as indicated on such Perfection Certificate, 2022, (iv) audited consolidated financial statements together with copies of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020financing statements (or similar documents) disclosed by such search, and December 31, 2019 and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (vor similar document) the most recent FOCUS Reportwould be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(h) Upon The Lenders shall have received the reasonable request financial statements and opinion referred to in Section 3.05.
(i) All amounts due are outstanding under the Existing Company Credit Agreement shall have been paid in full, or shall be paid in full simultaneously with the making of the Lender made at least 10 days before Tranche A Loans and the Tranche B Loans hereunder, the commitments thereunder terminated, and all Guarantees thereof and collateral therefor released and discharged.
(j) No action, event, occurrence, development or state of circumstances or facts shall have occurred, since the date of the Merger Agreement, that has had or would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect (as defined in the Merger Agreement).
(k) The waiting period (and any extension thereof) applicable to the Merger under the HSR Act (such term and each other capitalized term used in this paragraph (k) but not otherwise defined in this Agreement having the meaning assigned to such term in the Merger Agreement) and other applicable Antitrust Laws set forth on Section 9.1(b) of the Company Disclosure Schedule shall have been terminated or shall have expired, and all consents, approvals, permits, authorizations and waiting periods under all Antitrust Laws set forth in Section 9.1(b) of the Company Disclosure Schedule, and all consents, approvals, permits, authorizations and waiting periods of Governmental Entities set forth in Section 9.1(b) of the Company Disclosure Schedule to the Merger shall have been obtained or expired, as the case may be, and no temporary restraining order, preliminary or permanent injunction or other judgment, order or decree issued by a court or agency of competent jurisdiction located in the United States or in another jurisdiction outside of the United States in which the Company or any of its subsidiaries, or Holdings or any of its subsidiaries, engages in business activities that prohibits the consummation of the Merger shall have been issued and remain in effect, and no Law shall have been enacted, issued, enforced, entered, or promulgated that prohibits or makes illegal the consummation of the Merger or any of the other material transactions contemplated by the Merger Agreement.
(l) The Transactions shall have been consummated or shall be consummated simultaneously with the making of the Tranche A Loans and the Tranche B Loans on the Restatement Date, the Borrower shall have provided to the Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before in all material respects in accordance with the Restatement Dateterms hereof, the terms of the Documents and all material requirements of applicable law, and the Merger Agreement shall not have been modified or waived in any manner adverse to the Lenders in any material respect without the prior written consent of the Administrative Agent. The Administrative Agent shall have received copies of the Merger Agreement and all certificates, opinions and other documents delivered thereunder, certified by a Financial Officer of the U.S. Borrower as being complete and correct.
(i) The Lender representations and warranties set forth in Sections 3.01, 3.02, 3.03, 3.11 and 3.12 shall be true and correct in all material respects on the Restatement Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, (ii) the condition relating to the accuracy of the representations and warranties relating to the Company in the Merger Agreement shall have received been satisfied (without giving effect to any waiver, amendment or other modification to such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, condition in form and substance reasonably satisfactory a manner adverse to the LenderLenders in any material respect without the consent of the Administrative Agent) and (iii) no Default or Event of Default (other than a Default or Event of Default under paragraph (a) of Article VII resulting from a breach of a representation or warranty not specified in clause (i) of this paragraph (m)) shall have occurred and be continuing.
Appears in 1 contract
Restatement Date. The initial Borrowing following effectiveness of the amendment and restatement of the Existing Credit Agreement and the obligation of each Lender with a Term Loan Commitment to make New Term Loans on the Restatement Date is are subject to the conditions precedent, unless waived by satisfaction of the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), thatfollowing conditions:
(a) The Lender General Administrative Agent (or its counsel) shall have received executed counterparts of from each of the following:
party hereto either (i) a counterpart of this Agreement;
Agreement signed on behalf of such party or (ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, as attached thereto, of the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance evidence satisfactory to the LenderGeneral Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Lender General Administrative Agent shall have received, with a counterpart or copy for each Lender, such documents and certificates as the General Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Credit Party, the authorization of the Transactions and other legal matters relating to the Credit Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the General Administrative Agent and its counsel.
(c) The representations and warranties of each Credit Party set forth in the Loan Documents shall be true and correct on and as of the Effective Date, except to the extent such representations and warranties expressly relate to an earlier or later date and no Default shall have occurred and be continuing, and the General Administrative Agent shall have received, with a counterpart or copy for each Lender, a certificate signed by the President, a Vice President or a Financial Officer of the Company confirming the foregoing.
(d) The General Administrative Agent shall have received all fees and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunderany Credit Party hereunder or under any Loan Document.
(ce) The Lender General Administrative Agent (or its counsel) shall have received evidence a favorable written opinion (addressed to the General Administrative Agent and the Lenders and dated the Effective Date) from B▇▇▇▇ & D▇▇▇▇▇▇, U.S. counsel for the Borrowers, substantially in formthe form of Exhibit C and covering such other matters relating to the Credit Parties, scope the Loan Documents or the Transactions as the General Administrative Agent or the Lenders shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(f) The General Administrative Agent shall have received updated schedules to the Existing Credit Agreement, in form and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower General Administrative Agent and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowingcounsel.
(g) The Lender 364-Day Credit Agreement shall have received: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as been executed and delivered by each of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Reportparties thereto.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower The Lenders shall have provided received, to the Lender the extent requested, all documentation and other information so requested in connection with required by regulatory authorities under applicable “know your customer” and anti-money-money laundering Lawsrules and regulations, including the PATRIOT U.S.A. Patriot Act, in each case at least five days before the Restatement Date.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Zimmer Holdings Inc)
Restatement Date. The initial Borrowing following obligations of the Restatement Date is subject Lenders to make Loans to the Company hereunder shall not become effective until the date on which each of the following conditions precedent, unless shall have been satisfied (or waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that:in accordance with Section 10.08):
(a) The Lender Administrative Agent (or its counsel) shall have received executed counterparts of from each of the following:
party hereto either (i) a counterpart of this Agreement;
Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Note;Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(iiib) the fee letter agreement, The Administrative Agent shall have received favorable written opinions (each dated as of December 20the Restatement Date and addressed to the Administrative Agent and the Lenders) of (i) the general counsel of the Company, 2022 substantially in the form of Exhibit D-1 hereto and (ii) Kirkpatrick & Lockhart LLP, counsel for the “Fee Letter”Company, substantially in ▇▇▇ ▇▇rm ▇▇ ▇▇▇▇▇it D-2 hereto, covering such other matters relating to the Company, this Agreement and the Transactions as the Administrative Agent or its counsel shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or such other analogous documents), between the Borrower and the Lender;
(iv) a certificate including all amendments thereto, of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the BorrowerCompany, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organizationDelaware, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylaws, as attached thereto, good standing of the Borrower Company as of a recent date, from the Secretary of State of Delaware; (ii) a certificate of the Secretary or Assistant Secretary of the Company dated the Restatement Date certifying (A) that attached thereto is a true and complete copy of the by-laws of the Company as in effect on the Restatement Date and at all times since a date prior to the date of such certification, (C) as to the resolutions of the board Company described in item (B) below, (B) that attached thereto is a true and complete copy of directors resolutions adopted by the Board of Directors of the Borrower Company authorizing the execution, delivery and performance of each Loan Document this Agreement and the borrowings hereunder by the Company, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of the Company have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to which it is a partyclause (i) above, and (D) as to the incumbency and specimen signature of each officer of the Company executing this Agreement or any other document delivered in connection herewith; (iii) a good standing certificate of another officer of the Company as to the incumbency and signature of the Secretary or such Assistant Secretary of the Company executing the certificate pursuant to (ii) above; and (iv) such other documents as the Lenders or analogous documentation if applicable) counsel for the Borrower from the Secretary of State Administrative Agent may reasonably request.
(or analogous governmental entityd) The Administrative Agent shall have received a certificate of the jurisdiction of its organization as of a recent dateCompany, to dated the extent generally available in such jurisdiction Restatement Date and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized a Financial Officer of the BorrowerCompany, stating that on Restatement Date confirming compliance with the conditions precedent set forth in paragraphs (Ab) no Default or Event of Default has occurred and is continuing and (Bc) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the LenderSection 4.03.
(be) The Lender Administrative Agent shall have received all fees and other amounts due and payable on or before the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed prior to by the Borrower and the Lender from time to time, and (iii), to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to All outstanding loans under the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender Original Agreement shall have received: (i) a compliance certificate substantially in been repaid and all other amounts due under the form Original Agreement shall have been paid. The Administrative Agent shall notify the Company and the Lenders of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Report.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, and such notice shall be conclusive and binding. Notwithstanding the Borrower shall have provided foregoing and any other provision herein to the Lender contrary, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Lawsobligations of the Lenders to make Loans to any Borrower hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.08) at or prior to 2:00 p.m., including the PATRIOT ActNew York City time, on September 27, 2002 (and, in each case the event such conditions are not so satisfied or waived, the Commitments shall terminate at least five days before the Restatement Datesuch time).
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing following the Restatement Date is subject In addition to the conditions precedentsatisfaction or waiver of each requirement set forth in Section 4.01, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that:
(a) The Lender Administrative Agent (or its counsel) shall have received executed counterparts from each party to each of the following Loan Documents either (x) an original counterpart of such Loan Document signed on behalf of such party or (y) evidence satisfactory to the Administrative Agent (which may include a facsimile copy or PDF copy of each signed signature page) that such party has signed a counterpart of each of the following:
(i) this Agreement;,
(ii) the Note;each Collateral Document (other than any Restatement Date Mortgage Amendment), and
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”each promissory note requested pursuant to Section 2.09(e), between the Borrower and the Lender;if any.
(ivb) a certificate The Administrative Agent shall have received, on behalf of itself, the Secretary or an Assistant Secretary Collateral Agent, the Lenders and each Issuing Bank on the Restatement Date, favorable written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower certifying Loan Parties, (A) that there dated the Restatement Date, (B) addressed to each Issuing Bank, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs such counsel to deliver such opinions.
(c) The Administrative Agent shall have been no changes received each of the following for each Loan Party:
(i) a copy (which shall be delivered as attachments to the certificates required in the charter document following clause (ii)) of the Borrowercertificate or articles of incorporation, as attached thereto and as partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Person, (A) in the case of any such Person that is an entity registered with the state of its formation (which shall include, without limitation, each such Person that is a corporation), certified as of a recent date by the Secretary of State (or analogous governmental other similar official) and a certificate as to the good standing (which, in the case of each such Person that is a Texas entity, shall include both a certificate of account status (or comparable document) and a certificate of existence) of the jurisdiction each such Person as of its organization, since the a recent date from such Secretary of the certification thereof by such governmental entity, State (or other similar official) or (B) as to in the bylawscase of each such Person that is not a registered business organization, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, as applicable, of such Person; and
(ii) a certificate of the Secretary, Assistant Secretary or any Responsible Officer of each Loan Party, in each case dated the Restatement Date and certifying:
(A) that attached thereto is a true, correct and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Person, together with any and all amendments thereto, of the Borrower as in effect on the date Restatement Date and at the time the resolutions described in clause (B) below were adopted,
(B) that attached thereto is a true, correct and complete copy of such certification, (C) as to resolutions of duly adopted by the board of directors (or equivalent governing body) of the Borrower authorizing such Person (or its managing general partner or managing member); that such resolutions authorize (i) the execution, delivery and performance of each the Loan Document Documents to which it such Person is a partyparty and (ii) in the case of the Borrower, the Borrowings hereunder; that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Restatement Date,
(C) that attached thereto is a true, correct and complete copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Person, certified as required in clause (i) above, and that such governing document or documents have not been amended since the date of the last amendment attached thereto,
(D) as to a good standing certificate the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Person, and
(or analogous documentation if applicableE) as to the absence of any pending proceeding for the Borrower from the Secretary dissolution or liquidation of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent datesuch Person or, to the extent generally available in knowledge of such jurisdiction and (E) Person, threatening the names and true signatures existence of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;such Person.
(vd) a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred The Collateral and is continuing and (B) the representations and warranties in Article V are (1) Guarantee Requirement with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects items to be completed as of such date, except the Restatement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate from each Person required to deliver one or more Collateral Documents pursuant to the extent any such representation Collateral and Guarantee Requirement, dated the Restatement Date and signed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including the results of a search of the UCC (or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2equivalent under other similar law) filings made with respect to any representations or warranties that do not contain a materiality qualifier, true such Persons in the jurisdictions contemplated by the Perfection Certificate and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion copies of the counsel to the Borrower, addressed to the Lender financing statements (or similar documents) disclosed by such search and otherwise in form and substance evidence reasonably satisfactory to the LenderAdministrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released.
(be) The Lender Administrative Agent shall have received evidence or assurances satisfactory to it that, after giving effect to the application of the proceeds of the initial Borrowing hereunder, the Borrower will have at least U.S.$20.0 million in Liquidity (comprised of cash or undrawn availability under the Revolving Facility that would be permitted to be drawn in compliance with the Financial Performance Covenants).
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Permitted Indebtedness
(g) There has not been any Material Adverse Effect since December 31, 2016.
(h) The Agents shall have received all fees and payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Restatement Date (including amounts payable pursuant to the Engagement Letter) and, to the extent invoiced, all other amounts due and payable pursuant to the Existing Credit Agreement and Loan Documents on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunderunder the Existing Credit Agreement, hereunder or under any Loan Document.
(ci) The Lender Administrative Agent shall have received insurance certificates, endorsements or other appropriate evidence supplied by one or more insurance brokers or insurance companies demonstrating compliance with all insurance requirements set forth in formSection 5.02 (including, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with without limitation, Section 6.65.02(c)).
(dj) There The Administrative Agent shall not have occurred received a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f) and its Subsidiaries taken as a whole, since December 31, 2021, or (iig) the facts of this Section 4.02 and information regarding such entities as represented by such entities to date.in clauses (b) and (c) of Section 4.01
(ek) The Lender Administrative Agent and the Lenders shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender shall have received: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Report.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower shall have provided to the Lender the documentation and other information so requested in connection required by regulatory authorities with respect to the Loan Parties under applicable “know your customer” and anti-money-money laundering Lawsrules and regulations, including without limitation the U.S.A. PATRIOT Act, in each case that has been reasonably requested by the Administrative Agent at least five days before Business Days in advance of the Restatement Date.
(il) The Lender Administrative Agent and the Lenders shall have received such other agreementstrue and correct copies of a balance sheet and related statements of operations, documentscash flows and owners’ equity showing the financial position of the MLP Entity for the twelve-month period ending December 31, instruments 2016, prepared as described in Section 5.04(a).
(m) The Administrative Agent shall have received (i) a consolidated balance sheet, prepared on a Pro Forma Basis, of the MLP Entity as of the Restatement Date acceptable to the Administrative Agent and certificates as are reasonably requested an income statement showing the financial position of the MLP Entity for the twelve-month period ended on March 31, 2017, and (ii) an updated financial model provided by the Lender MLP Entity, which shall not be materially inconsistent with the prior financial model delivered by the MLP Entity to the Administrative Agent in connection with the amendment and its counselrestatement (except to the extent of any adjustments as may have been agreed between the Borrower and the Administrative Agent).
(n) (i) evidence of flood insurance with respect to each Material Gathering Station Real Property to the extent required by Section 5.02, if any, in form and substance reasonably satisfactory to Administrative Agent, (ii) evidence of flood insurance to the Lenderextent required by Section 5.02, if any, with respect to each Restatement Date Mortgage Amendment (or counterpart thereof, supplement or other modification thereto) delivered pursuant to Section 5.12(a) and, (iii) if required by the provisions of Flood Insurance Laws, policies or certificates of insurance to the extent required by Section 5.02(c) (to the extent customary and obtainable after the use of commercially reasonable efforts);
(o) The Administrative Agent shall be satisfied that, after giving effect to the initial Borrowings to be made on the Restatement Date, the matters certified to in each certificate are true. All legal matters in connection with this Agreement, the other Loan Documents and the consummation of the Transactions shall be approved by the Administrative Agent and its legal counsel.
Appears in 1 contract
Restatement Date. The initial Borrowing following effectiveness of the Restatement Date amendment and restatement of the Existing Credit Agreement is subject to the conditions precedent, unless waived by satisfaction of the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), thatfollowing conditions:
(a) The Lender General Administrative Agent (or its counsel) shall have received executed counterparts of from each of the following:
party hereto either (i) a counterpart of this Agreement;
Agreement signed on behalf of such party or (ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, as attached thereto, of the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance evidence satisfactory to the LenderGeneral Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Lender General Administrative Agent shall have received, with a counterpart or copy for each Lender, such documents and certificates as the General Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Credit Party, the authorization of the Transactions and other legal matters relating to the Credit Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the General Administrative Agent and its counsel.
(c) The representations and warranties of each Credit Party set forth in the Loan Documents shall be true and correct on and as of the Restatement Date, except to the extent such representations and warranties expressly relate to an earlier or later date and no Default shall have occurred and be continuing, and the General Administrative Agent shall have received, with a counterpart or copy for each Lender, a certificate signed by the President, a Vice President or a Financial Officer of the Company confirming the foregoing.
(d) The General Administrative Agent shall have received all fees and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunderany Credit Party hereunder or under any Loan Document.
(ce) The Lender General Administrative Agent (or its counsel) shall have received evidence a favorable written opinion (addressed to the General Administrative Agent and the Lenders and dated the Restatement Date) from B▇▇▇▇ & D▇▇▇▇▇▇, U.S. counsel for the Borrowers, substantially in formthe form of Exhibit C and covering such other matters relating to the Credit Parties, scope the Loan Documents or the Transactions as the General Administrative Agent or the Lenders shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(f) The General Administrative Agent shall have received updated schedules to the Existing Credit Agreement, in form and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower General Administrative Agent and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowingcounsel.
(g) The Lender Substantially simultaneous with the initial Borrowings to be made on the Restatement Date (in respect of which the General Administrative Agent and the Applicable Administrative Agent shall have received: received one or more Borrowing Requests in accordance with Section 2.03), (i) a compliance certificate substantially the commitments under the 364-Day Credit Agreement shall be terminated (and all loans (if any) outstanding thereunder and other amounts due in the form of Exhibit A attached hereto (which certificate may state respect thereof paid in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computationsfull), (ii) such information as the Lender reasonably requests Existing Term Loans shall be repaid and refinanced in full, together with accrued interest thereon to confirm but excluding the tax, legalRestatement Date, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements the Borrowers shall pay to the Administrative Agents for the accounts of the Borrower lenders and its Subsidiaries for issuing lenders entitled thereto all accrued fees and expenses payable under the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of Existing Credit Agreement to but excluding the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS ReportRestatement Date.
(h) Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower The Lenders shall have provided received, to the Lender the extent requested, all documentation and other information so requested in connection with required by regulatory authorities under applicable “know your customer” and anti-money-money laundering Lawsrules and regulations, including the PATRIOT U.S.A. Patriot Act, in each case at least five days before the Restatement Date.
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing obligations of the Lenders to make Loans and of the Issuing Bank to issue or continue Letters of Credit hereunder shall not become effective until the date on which each of the following the Restatement Date is conditions (subject to the conditions precedent, unless proviso contained in Section 4.01(a)(v)) is satisfied (or waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that:in accordance with Section 9.02):
(a) The Lender Administrative Agent shall have received executed counterparts of the following, each of which, to the followingextent applicable, shall be originals, telecopies or electronically transmitted copies (each followed promptly by originals) unless otherwise specified, each, to the extent applicable, properly executed by a Responsible Officer of the signing Loan Party or other signing Person, each, to the extent applicable, dated the Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement and the Reaffirmation Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a promissory note executed by the NoteBorrower in favor of each Lender requesting a note;
(iii) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the fee letter agreementAdministrative Agent may require evidencing the identity, dated 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, (B) a copy of December 20, 2022 (a Certificate of the “Fee Letter”), between Secretary of State of the jurisdiction of incorporation of the Borrower and Dart certifying (1) as to a true and correct copy of the Lendercharter of the Borrower and Dart and each amendment thereto on file in such Secretary’s office and (2) that such amendments are the only amendments to the Borrower’s or Dart’s charter on file in such Secretary’s office and (C) comparable documents as may be available in respect of the Subsidiary Borrower from the Netherlands;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing, to the extent such concept is relevant in such jurisdiction, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a certificate Material Adverse Effect;
(v) a favorable opinion of the Secretary or an Assistant Secretary each of the Borrower certifying (A) that there have been no changes in Sidley Austin LLP, special New York counsel to the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entityLoan Parties, (B) as Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, special Delaware counsel to the bylaws, as attached thereto, of the Borrower as in effect on the date of such certificationLoan Parties, (C) as ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special IP counsel to resolutions the Loan Parties and (D) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Amsterdam N.V., special Dutch counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender, in form and substance satisfactory to the Administrative Agent; provided, however, that the delivery of the board opinion referred to in clause (D) above shall be a condition to all credit extensions to the Subsidiary Borrower, but shall not be a condition to the making of directors Loans to, or the issuance of Letters of Credit for the account of, the Borrower;
(vi) a favorable opinion of the Borrower authorizing Chief Legal Officer to the Borrower, addressed to the Administrative Agent and each Lender, in form and substance satisfactory to the Administrative Agent;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowingsuch consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vviii) a certificate, certificate signed by an Authorized a Responsible Officer of the Borrower, stating that on Restatement Date Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no Default event or Event circumstance since the date of Default the Audited Financial Statements that has occurred had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and
(ix) a certificate from the Chief Financial Officer or the Treasurer of the Borrower attesting that, both before and after the execution and delivery of the Loan Documents and the consummation of the transactions contemplated thereby, each of (A) the Borrower, the Subsidiary Borrower and Dart is continuing and will be Solvent and (B) the representations Borrower and warranties in Article V its Subsidiaries, on a consolidated basis, are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the Lender.will be Solvent
(b) The Lender shall have received all Evidence reasonably satisfactory to the Administrative Agent of the perfection of the Collateral Agent’s security interest under the Security Agreement in the Collateral.
(c) All fees required to be paid to the Administrative Agent and other amounts due and payable the Lenders on or before the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii), to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender Date shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6been paid.
(d) There Unless waived by the Administrative Agent solely in respect of this Section 4.01(a), the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Restatement Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not have occurred thereafter preclude a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results final settling of operations, or prospects of accounts between the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to dateAdministrative Agent).
(e) The Lender shall have received evidence of all All governmental, equity holder shareholder and third-third party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods Transaction shall have expired without any action being taken by any authority been obtained and shall be in full force and effect, and no law or regulation shall be applicable that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effectTransaction.
(f) No actionThe Lenders shall have received the following, suit, investigation or proceeding shall be pending or, in form and substance reasonably satisfactory to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) The Lender shall have receivedAdministrative Agent: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the two most recent fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 prior to the Restatement Date and (vii) unaudited interim consolidated financial statements of the most recent FOCUS ReportBorrower and its Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i).
(g) There shall not have occurred a Material Adverse Effect since December 29, 2012.
(h) Upon All principal, interest, fees and other amounts owing by the reasonable request Company and the Subsidiary Borrower under the Existing Credit Agreement shall have been (or shall substantially contemporaneously be) repaid in full, (it being understood that such repayment may be made out of the Lender made at least 10 days before proceeds of Loans hereunder on the Restatement Date). The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Date, and such notice shall be conclusive and binding. Notwithstanding the Borrower foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall have provided not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to the Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering LawsSection 9.02) at or prior to 3:00 p.m., including the PATRIOT ActNew York City time, on November 15, 2013 (and, in each case the event such conditions are not so satisfied or waived, the Revolving Commitments shall terminate at least five days before the Restatement Datesuch time).
(i) The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Restatement Date. The initial Borrowing following the Restatement Date is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on On the Restatement Date), that:
(a) The Lender Administrative Agent shall have received, on behalf of itself, the Lenders and the Issuing Bank, a favorable written opinion of Davis Polk & Wardwell, special counsel for Holdings and the Borrower, ▇▇▇▇▇▇▇▇▇all▇ ▇▇ ▇▇▇ effect set forth in Exhibit I (A) dated the Restatement Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower hereby request such counsel to deliver such opinion.
(b) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders and to the Administrative Agent.
(c) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) the Note;
(iii) the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) a certificate copy of the Secretary certificate or an Assistant Secretary articles of the Borrower certifying (A) that there have been no changes in the charter document incorporation or other equivalent document, including all amendments thereto, of the Borrowereach Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction state of its organization, since the date of the certification thereof by such governmental entity, (B) and a certificate as to the bylawsgood standing of each Loan Party as of a recent date, as attached thereto, from such Secretary of State; (ii) a certificate of the Borrower Secretary or Assistant Secretary of each Loan Party dated the Restatement Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or other equivalent document of such Loan Party as in effect on the Restatement Date and (other than with respect to Holdings and the Borrower, each of which will adopt new by-laws effective on the Restatement Date) at all times since a date prior to the date of such certificationthe resolutions described in clause (B) below, (CB) as to that attached thereto is a true and complete copy of resolutions duly adopted by the Board of the board Directors or other equivalent body of directors of the Borrower such Loan Party authorizing the execution, delivery and performance of each the Loan Document Documents to which it such person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other equivalent document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above (other than with respect to Holdings, which will adopt a new certificate of incorporation effective on the Restatement Date, the form of which (or, if available, a copy certified by the Secretary of State) shall be attached to such certificate), and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a good standing certificate (or analogous documentation if applicable) for of another officer as to the Borrower from incumbency and specimen signature of the Secretary of State or Assistant Secretary executing the certificate pursuant to (or analogous governmental entityii) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction above; and (Eiv) such other documents as the names and true signatures of Lenders, the incumbent officers of Issuing Bank or the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;Administrative Agent may reasonably request.
(vd) The Administrative Agent shall have received a certificate, dated the Restatement Date and signed by an Authorized a Financial Officer of the Borrower, stating that on Restatement Date confirming compliance with the conditions precedent set forth in paragraphs (Ab) no Default or Event of Default has occurred and is continuing and (Bc) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the LenderSection 4.01.
(be) The Lender Administrative Agent shall have received received, or shall receive substantially simultaneously with the initial Borrowing of the Term Loans hereunder, all fees Fees and other amounts due and payable on or before prior to the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii)including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations hereunder or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without under any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effectother Loan Document.
(f) No action, suit, investigation or proceeding The Amendment Agreement shall be pending or, to the knowledge of any Loan Party, threatened have become effective in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowingaccordance with its terms.
(g) The Lender Reaffirmation of Guarantee shall have received: (i) a compliance certificate substantially been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, full force and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Reporteffect.
(h) Upon Each of (i) the reasonable request Pledge Agreement, (ii) the Deed and Agreement of Pledge dated June 27, 2002, among AMI Acquisition LLC, AMI Acquisition II LLC and the Collateral Agent, (iii) the Chattel Mortgage dated January 20, 2001, between the Borrower and the Collateral Agent and (iv) the Share Mortgage dated October 31, 2002, between the Borrower and the Collateral Agent, shall be in full force and effect, and all the outstanding Equity Interests of the Lender made at least 10 days before Borrower and the Restatement DateSubsidiaries (other than Immaterial Subsidiaries) shall have been duly and validly pledged thereunder to the Collateral Agent for the ratable benefit of the Secured Parties and certificates representing such shares and interests, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent; provided that (i) neither the Borrower nor any Domestic Subsidiary shall have provided be required to pledge more than 65% of the Lender voting stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary or Immaterial Subsidiary shall be required to pledge the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Restatement Datecapital stock of any of its Subsidiaries.
(i) The Lender Security Agreement shall have received such other agreements, documents, instruments be in full force and certificates as are effect and each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Lender Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and its counselperfected first-priority security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent.
(i) Each of the Security Documents, in form and substance reasonably satisfactory to the Lender.Lenders, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02, (iii) each of such Security Documents shall have been filed and recorded in the recording office as specified on Schedule 3.19
Appears in 1 contract
Sources: Credit Agreement (Amis Holdings Inc)
Restatement Date. The initial Borrowing following the Restatement Date is subject to the conditions precedent, unless waived by the Lender (and the Borrower, by executing this Agreement, shall be deemed to have certified that all such conditions precedent unless waived are satisfied on the Restatement Date), that:
(a) 4.1.1.1. The Lender shall have received executed counterparts of each of the following:
(i) 4.1.1.1.1. this Agreement;
(ii) 4.1.1.1.2. the Note;
(iii) 4.1.1.1.3. the fee letter agreement, dated as of December 20, 2022 (the “Fee Letter”), between the Borrower and the Lender;
(iv) 4.1.1.1.4. a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, as attached thereto, of the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction and (E) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Borrowing;
(v) 4.1.1.1.5. a certificate, signed by an Authorized Officer of the Borrower, stating that on Restatement Date (A) no Default or Event of Default has occurred and is continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date; and
(vi) 4.1.1.1.6. a written opinion of the counsel to the Borrower, addressed to the Lender and otherwise in form and substance satisfactory to the Lender.
(b) 4.1.1.2. The Lender shall have received all fees and other amounts due and payable on or before the Restatement Date, including without limitation (i) the fees specified in the Fee Letter, (ii) any other fees agreed to by the Borrower and the Lender from time to time, and (iii), to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(c) 4.1.1.3. The Lender shall have received evidence in form, scope and substance reasonably satisfactory to the Lender of current insurance coverage that complies with Section 6.6.
(d) 4.1.1.4. There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(e) 4.1.1.5. The Lender shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Lender could have such effect.
(f) No ▇.▇.▇.▇. ▇▇ action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any Borrowing.
(g) 4.1.1.7. The Lender shall have received: (i) a compliance certificate substantially in the form of Exhibit A attached hereto (which certificate may state in Section 4 thereof that the Borrower is in compliance with Section 7.11 hereof as of the Restatement Date without attaching any financial data or computations), (ii) such information as the Lender reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022, (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2021, December 31, 2020, and December 31, 2019 and (v) the most recent FOCUS Report.
(h) 4.1.1.8. Upon the reasonable request of the Lender made at least 10 days before the Restatement Date, the Borrower shall have provided to the Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Restatement Date.
(i) 4.1.1.9. The Lender shall have received such other agreements, documents, instruments and certificates as are reasonably requested by the Lender and its counsel, in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract