Second Restatement Effective Date. The amendments set forth herein shall be effective as of the date on which each of the following conditions shall have been satisfied (or waived in accordance with Section 10.5 of the Existing Credit Agreement): (a) Company (or its predecessors-in-interest) shall have made a Voluntary Prepayment on or prior to the Second Restatement Effective Date (and the Administrative Agent acknowledges that such Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on a pro rata basis in an aggregate amount not less than $10,000,000. (b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters. (c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank. (d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement. (e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization. (f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent); (g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing to the Administrative Agent and its counsel invoiced to Company on or before the Second Restatement Effective Date and reimbursable by Company under the terms of the Existing Credit Agreement. (h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent. (i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & Xxxxx, P.A., counsel for Credit Parties, in the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and as to such other matters as Administrative Agent may reasonably request, dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders). (j) The Administrative Agent shall have received evidence satisfactory to it in its reasonable discretion that the Corporate Reorganization has been consummated. (k) The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Agreement (and any other amendments or agreements relating to this Agreement to which it is a party) and (B) the extensions of credit contemplated hereunder. (l) The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements relating to the Pledge Agreement to which it is a party). (m) The Administrative Agent shall have received true and complete copies of the certificate of incorporation and by laws (or equivalent organizational documents) of (A) Company and (B) Telvent as of the Second Restatement Effective Date; provided that, in lieu of delivery of each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement. (n) On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate from the Company, dated the Second Restatement Effective Date and addressed to Administrative Agent and the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to the transactions contemplated by this Agreement, the Company is and will be Solvent. (o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments thereto.
Appears in 1 contract
Second Restatement Effective Date. The amendments All-Lender Amendments and the amendment of the Guarantee Agreement as set forth herein in Section 3 hereof shall be effective as of on the date on which each of so elected by the Borrower (the “Second Restatement Effective Date”); provided that the following conditions shall have been satisfied (or waived in accordance with Section 10.5 as of the Existing Credit Agreement):such date:
(a) Company (or its predecessors-in-interest) shall have made a Voluntary Prepayment on or prior to the Second The First Restatement Effective Date (and the Administrative Agent acknowledges that such Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on a pro rata basis in an aggregate amount not less than $10,000,000.shall have occurred;
(b) The Administrative Agent (or its counsel) shall have received copies of executed signature pages to this Agreement from (i) the Company Borrower and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered each Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing to the Administrative Agent and its counsel invoiced to Company on or before the Second Restatement Effective Date and reimbursable by Company under the terms of the Existing Credit Agreement.
(h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & Xxxxx, P.A., counsel for Credit Parties, in the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and as to such other matters as Administrative Agent may reasonably request, dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably (unless previously delivered pursuant to Section 5(a) above) either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (and each Credit Party hereby instructs which may include facsimile transmission or electronic transmission of a signed signature page of this Agreement) that such counsel to deliver such opinions to Agents and Lenders).party has signed a counterpart of this Agreement;
(j) The Administrative Agent shall have received evidence satisfactory to it in its reasonable discretion that the Corporate Reorganization has been consummated.
(kc) The Administrative Agent shall have received a copy certificate dated the Second Restatement Effective Date and signed by a Financial Officer of the resolutionsBorrower stating that (i) each of the representations and warranties of the Loan Parties contained herein and in the Amended Credit Agreement are true and correct (x) in the case of representations and warranties qualified as to materiality, in all respects and (y) otherwise, in all material respects, in each case, as of the Second Restatement Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (I) in the case of the representations and warranties qualified as to materiality, in all respects and (II) otherwise, in all material respects as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing at the time of the Second Restatement Effective Date or immediately after giving effect thereto;
(d) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Issuing Banks and the Lenders and dated the Second Restatement Effective Date) of special counsel for the Successor Borrower covering such matters as the Administrative Agent shall reasonably request relating to the Successor Borrower and this Agreement and in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Agreement (and any other amendments or agreements relating . The Successor Borrower hereby requests such counsel to this Agreement to which it is a party) and (B) the extensions of credit contemplated hereunder.deliver such opinion;
(le) The Administrative Agent shall have received a copy such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the resolutionsSuccessor Borrower, the authorization of this Agreement and any other legal matters relating to the Successor Borrower, this Agreement or the transactions contemplated herein, all in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the execution, delivery Agent and performance of the Pledge Agreement (and any other amendments or agreements relating to the Pledge Agreement to which it is a party).its counsel;
(mf) The Guarantee Requirement (as such term is defined in the Amended Credit Agreement) shall have been satisfied;
(g) The Administrative Agent shall have received true all fees and complete copies of the certificate of incorporation other amounts due and by laws (payable on or equivalent organizational documents) of (A) Company and (B) Telvent as of the Second Restatement Effective Date; provided that, in lieu of delivery of each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments prior to those documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement.
(n) On the Second Restatement Effective Date, including to the extent invoiced at least two Business Days prior to the Second Restatement Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Loan Parties under Section 9 hereof or the Amended Credit Agreement (and not previously reimbursed pursuant to Section 5(b) above); and
(h) The Administrative Agent shall have received a Solvency Certificate notice from the Company, dated Borrower electing for the Second Restatement Effective Date and addressed to Administrative Agent and occur, which notice shall specify the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to date of the transactions contemplated by this Agreement, the Company is and will be Solvent.
(o) Company shall have delivered to Administrative Agent an originally executed Second Restatement Effective Date Certificate, together with all attachments thereto(which shall be no earlier than three Business Days after the delivery of such notice).
Appears in 1 contract
Second Restatement Effective Date. The amendments set forth herein shall be effective as effectiveness of this Second Amended and Restated Credit Agreement and the obligation of the date Lenders to make or continue their Credit Extension on which each of the following conditions shall have been satisfied (or waived in accordance with Section 10.5 of the Existing Credit Agreement):
(a) Company (or its predecessors-in-interest) shall have made a Voluntary Prepayment on or prior to the Second Restatement Effective Date is subject to satisfaction (and the Administrative Agent acknowledges that such Voluntary Prepayment was made on October 21, 2009or waiver) to be applied to the Tranche C Term Loans on a pro rata basis in an aggregate amount not less than $10,000,000.
(b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing to the Administrative Agent and its counsel invoiced to Company following conditions precedent on or before the Second Restatement Effective Date and reimbursable by Company under the terms Date:
(a) The Administrative Agent’s receipt of the Existing Credit Agreement.
following, each of which shall be originals or facsimiles (hfollowed promptly by originals) Subject to Section 5.15unless otherwise specified, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, each properly executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies a Responsible Officer of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & Xxxxxsigning Loan Party, P.A., counsel for Credit Parties, in the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and as to such other matters as Administrative Agent may reasonably request, each dated as of the Second Restatement Effective Date and otherwise (or, in form and substance reasonably satisfactory to Administrative Agent (the case of certificates of governmental officials, a recent date before the Second Restatement Effective Date) and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(j) The Administrative Agent shall have received evidence satisfactory to it in its reasonable discretion that the Corporate Reorganization has been consummated.
(k) The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders signatory hereto:
(i) executed counterparts of this Agreement and the Reaffirmation And Assumption Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, provided that each such Lender has returned its Note received pursuant to the board Restated Credit Agreement, if any, as required by Section 2.12;
(iii) such certificates of directors resolutions or other governing bodyaction, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as applicablethe Administrative Agent may require evidencing the identity, authority and capacity of Company 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;
(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 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 would not reasonably be expected to have a duly authorized committee thereofMaterial Adverse Effect;
(v) authorizing favorable opinions of (A) Xxxxxx & Xxxxxx L.L.P., outside counsel to the Borrower, and (B) Xxxxxx XxXxxxxxx, General Counsel of the Borrower, in each case addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of this Agreement (and any other amendments or agreements relating to this Agreement the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since December 31, 2008 that has had or could be reasonably expected to have, either individually or in the extensions aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Certificate as of credit contemplated February 28, 2009;
(ix) a duly completed Compliance Certificate as of December 31, 2008, signed by a Responsible Officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that, subject to the initial Borrowing hereunder, the excess (if any) of the First Restatement Lenders’ First Restatement Loans made under the Restated Credit Agreement which shall not remain outstanding on and after the Second Restatement Effective Date as Loans under this Agreement shall have been repaid in full;
(xii) evidence that all of the Aggregate Commitments shall have been obtained and are in effect; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(lb) Any fees required to be paid on or before the Second Restatement Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Second Restatement Effective Date.
(d) All governmental and third party approvals (including landlords’ and other consents) necessary in connection with the continuing operations of the Loan Parties and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
(e) The Administrative Agent shall have received the results of a copy recent lien, tax lien, judgment and litigation search in each of the resolutionsjurisdictions or offices in which UCC financing statements or other filings or recordations should be made to evidence or perfect (with the priority required under the Loan Documents) security interests in the Collateral, and such search shall be reasonably satisfactory to the Lenders signatory hereto.
(f) Each document (including, without limitation, any UCC financing statement) required by the Guarantee and Collateral Agreement or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Permitted Liens), shall have been filed, registered or recorded or shall have been delivered to the Administrative Agent in proper form for filing, registration or recordation.
(g) There shall be no litigation, public or private, or administrative proceedings, governmental investigation or other legal or regulatory developments, actual or threatened, that, singly or in the aggregate, would reasonably be expected to result in a Material Adverse Effect on the Borrower and its Subsidiaries, taken as a whole, or would materially and adversely affect the ability of the Borrower and its Subsidiaries to fully and timely perform their respective obligations under the Loan Documents, or the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents.
(h) The Administrative Agent and the Lenders signatory hereto shall have received, in form and substance reasonably satisfactory to the Administrative Agent, them (i) all financial information required to be delivered pursuant to Section 6.01 of the board Restated Credit Agreement, (ii) annual projections of directors the Borrower and its Subsidiaries for the fiscal years ending December 31, 2009 and December 31, 2010, (iii) quarterly projections of the Borrower and its Subsidiaries for eight consecutive quarters commencing with the fiscal quarter ending March 31, 2009 and (iv) the Audited Financial Statements. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other governing body, as applicable, of Telvent (matter required thereunder to be consented to or approved by or acceptable or satisfactory to a duly authorized committee thereof) authorizing Lender unless the execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements relating to the Pledge Agreement to which it is a party).
(m) The Administrative Agent shall have received true and complete copies of the certificate of incorporation and by laws (or equivalent organizational documents) of (A) Company and (B) Telvent as of the Second Restatement Effective Date; provided that, in lieu of delivery of each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered written notice from such Lender prior to the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement.
(n) On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate from the Company, dated the proposed Second Restatement Effective Date and addressed to Administrative Agent and the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to the transactions contemplated by this Agreement, the Company is and will be Solvent.
(o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Holly Corp)
Second Restatement Effective Date. The amendments set forth herein amendment and restatement of the Existing Credit Agreement pursuant hereto and the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall be not become effective as of until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Second Restatement Effective Date) of Xxxxxx Xxxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received a certificate, dated the Second Restatement Effective Date and signed by the chief executive officer or the chief financial officer of the Company, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Second Restatement Effective Date, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including reasonable fees, charges and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Engagement Letter or any Loan Document (including the Existing Credit Agreement).
(f) The Collateral and Guarantee Requirement shall have been satisfied. The Administrative Agent shall have received a completed Perfection Certificate, dated the Second Restatement Effective Date and signed by an executive officer or a Financial Officer of the Company, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Domestic Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted under Section 6.02 or have been, or substantially contemporaneously with the initial funding of Loans on the Second Restatement Effective Date will be, released. Each Subsidiary Loan Party shall have entered into a reaffirmation agreement pursuant to which such Subsidiary Loan Party reaffirms its obligations under the Collateral Agreement and the other Security Documents, including with respect to the Obligations hereunder, in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Lenders shall have received the financial statements, opinions and certificates referred to in Section 3.04.
(h) The principal of and accrued and unpaid interest on all outstanding loans and letter of credit disbursements under the Existing Credit Agreement, and all accrued and unpaid fees and cost reimbursements payable under the Existing Credit Agreement (including all amounts owed in respect of such prepayments pursuant to Section 2.16 of the Existing Credit Agreement), shall have been (or, substantially simultaneously with the effectiveness of this Agreement and the making of Loans hereunder on the Second Restatement Effective Date, shall be) paid in full, and the Administrative Agent shall have received evidence reasonably satisfactory to it of such payment. Immediately after giving effect to the Transactions, neither the Company nor any Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.01 and (iii) preferred Equity Interests in Foreign Subsidiaries issued in compliance with Section 6.01(b) hereof to other Foreign Subsidiaries.
(i) The Administrative Agent shall have received a certificate, dated the Second Restatement Effective Date and signed by the chief financial officer of the Company, as to the solvency of the Loan Parties as of the Second Restatement Effective Date on a consolidated basis after giving effect to the Transactions, in form and substance reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(k) The Administrative Agent shall have received evidence that the insurance required by Section 5.08 is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.08. The Administrative Agent shall notify the Company and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived in accordance with Section 10.5 of the Existing Credit Agreement):
(a9.02) Company (or its predecessors-in-interest) shall have made a Voluntary Prepayment on at or prior to the Second Restatement Effective Date 5:00 p.m., New York City time, on December 10, 2015 (and the Administrative Agent acknowledges that such Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on a pro rata basis in an aggregate amount not less than $10,000,000.
(b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing to the Administrative Agent and its counsel invoiced to Company on or before the Second Restatement Effective Date and reimbursable by Company under the terms of the Existing Credit Agreement.
(h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & Xxxxx, P.A., counsel for Credit Partiesand, in the form of Exhibit D-1 and Exhibit D-2event such conditions shall not have been so satisfied or waived, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and as to Commitments shall terminate at such other matters as Administrative Agent may reasonably request, dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenderstime).
(j) The Administrative Agent shall have received evidence satisfactory to it in its reasonable discretion that the Corporate Reorganization has been consummated.
(k) The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Agreement (and any other amendments or agreements relating to this Agreement to which it is a party) and (B) the extensions of credit contemplated hereunder.
(l) The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements relating to the Pledge Agreement to which it is a party).
(m) The Administrative Agent shall have received true and complete copies of the certificate of incorporation and by laws (or equivalent organizational documents) of (A) Company and (B) Telvent as of the Second Restatement Effective Date; provided that, in lieu of delivery of each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement.
(n) On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate from the Company, dated the Second Restatement Effective Date and addressed to Administrative Agent and the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to the transactions contemplated by this Agreement, the Company is and will be Solvent.
(o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments thereto.
Appears in 1 contract
Second Restatement Effective Date. The amendments set forth herein This Agreement shall be not become effective as of until the date on which each of the following conditions shall precedent have been satisfied (or waived in accordance with Section 10.5 of by the Existing Credit Agreement):Administrative Agent:
(a) Company The Administrative Agent (or its predecessors-in-interestcounsel) shall have made received from each party hereto either (i) a Voluntary Prepayment counterpart of this Agreement and all other Loan Documents (including, without limitation, the Notes and the Security Documents) signed on behalf of such party or prior (ii) written evidence satisfactory to the Second Restatement Effective Date (and the Administrative Agent acknowledges (which may include telecopy transmission of a signed signature page of this Agreement) that such Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on party has signed a pro rata basis in an aggregate amount not less than $10,000,000counterpart of this Agreement and all other Loan Documents.
(b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from a favorable written opinion (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement addressed to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing to the Administrative Agent and its counsel invoiced to Company the Lenders on or before the Second Restatement Effective Date and reimbursable by Company under dated the terms Second Restatement Effective Date) of the Existing Credit Agreement.
(h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & Xxxxx, P.A.McGuireWoods LLP, counsel for Credit Parties, the Domestic Borrowers substantially in the form of Exhibit D-1 C-1, and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx Davies Xxxx Xxxxxxxx & Xxxxxxx L.L.P.Xxxxxxxx LLP, counsel for Telventthe Canadian Borrower, substantially in the form of Exhibit D-3 and Exhibit D-4C-2, respectivelycovering such matters relating to the Loan Parties, and the Loan Documents or the transactions contemplated thereby as to such other matters as Administrative Agent may the Required Lenders shall reasonably request, dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party . The Borrowers hereby instructs request such counsel to deliver such opinions to Agents and Lenders)opinions.
(jc) The Administrative Agent shall have received evidence satisfactory to it in its reasonable discretion that such documents and certificates as the Corporate Reorganization has been consummated.
(k) The Administrative Agent shall have received a copy or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the resolutionstransactions contemplated by the Loan Documents and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated thereby, all in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery Agent and performance of this Agreement (and any other amendments or agreements relating to this Agreement to which it is a party) and (B) the extensions of credit contemplated hereunderits counsel.
(ld) The Administrative Agent shall have received a copy of the resolutionscertificate, reasonably satisfactory in form and substance to the Administrative Agent, (i) with respect to the solvency of (A) the Lead Borrower and its Subsidiaries on a consolidated basis, and (B) each Loan Party, individually, as of the Second Restatement Effective Date, and (ii) certifying that, as of the Second Restatement Effective Date, the representations and warranties made by the Loan Parties in the Loan Documents are true and complete in all material respects and that no event has occurred (or failed to occur) which is or which, solely with the giving of notice or passage of time (or both) would be a Default or an Event of Default.
(e) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements relating to the Pledge Agreement to which it is a party).
(mf) The Administrative Agent shall have received true (i) an appraisal, in form and complete copies substance satisfactory to the Administrative Agent, performed by an appraiser acceptable to the Administrative Agent of the certificate Inventory of incorporation the Borrowers, and by laws (or equivalent organizational documentsii) a commercial finance examination in form and substance satisfactory to the Administrative Agent relating to inspections, audits and field searches (which may include conversations with responsible officers and employees) of each Borrower’s assets (Aincluding, without limitation, accounts receivable and inventory), liabilities, books and records, management information systems, cash management, vendor agreements and other material agreements.
(g) Company The Administrative Agent shall have received pro forma consolidated financial statements as to the Lead Borrower and its Subsidiaries, and forecasts prepared by management of the Lead Borrower, each in form satisfactory to the Administrative Agent, consisting of (i) balance sheets, income statements, and cash flow statements (including a calculation of Excess Availability) on a monthly basis for fiscal year 2008, and (Bii) Telvent balance sheets, income statements, and cash flow statements (including a calculation of Excess Availability) on an annual basis for each of fiscal years 2009, 2010, and 2011.
(h) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to them fairly present the business and financial condition of the Lead Borrower and its Subsidiaries, and that there has been no material adverse change in the assets, business, financial condition, income, or prospects of the Lead Borrower and its Subsidiaries since the date of the most recent financial statements delivered to the Administrative Agent.
(i) The Administrative Agent shall have received a Borrowing Base Certificate as of December 31, 2007, and shall be satisfied that Second Restatement Date Availability was not less than $700,000,000.
(j) There shall not have occurred any default, nor shall any event exist which is, or solely with the passage of time, the giving of notice or both, would be a default under any Material Indebtedness of any Loan Party.
(k) The Collateral Agent and the Canadian Agent shall have received results of searches or other evidence reasonably satisfactory to the Collateral Agent or the Canadian Agent, as applicable (in each case dated as of a date reasonably satisfactory to the Collateral Agent or the Canadian Agent, as applicable) indicating the absence of Liens on the Borrowers’ Inventory and proceeds thereof, including without limitation, receivables from credit card processors, except for Liens for which termination statements and releases reasonably satisfactory to the Collateral Agent or the Canadian Agent, as applicable, are being tendered concurrently with such extension of credit.
(l) The Collateral Agent and the Canadian Agent shall have received all documents and instruments, including Uniform Commercial Code and PPSA financing statements and certified statements issued by the Québec Register of Personal and Movable Real Rights, required by law or reasonably requested by the Collateral Agent and the Canadian Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Collateral Agent and the Canadian Agent.
(m) The Collateral Agent and the Canadian Agent, as applicable, shall have received the DDA Notifications, the Blocked Account Agreements and Credit Card Notifications required to be delivered hereunder on or before the Second Restatement Effective Date.
(n) All fees due at or immediately after the Second Restatement Effective Date and all reasonable costs and expenses incurred by the Administrative Agent and the Canadian Agent in connection with the establishment of the credit facility contemplated hereby (including the reasonable fees and expenses of counsel to the Administrative Agent and the Canadian Agent) shall have been paid in full.
(o) The consummation of the transactions contemplated hereby shall not (a) violate any Applicable Law, or (b) conflict with, or result in a default or event of default under, any material agreement of any Loan Party.
(p) No material changes in governmental regulations or policies affecting the Loan Parties, the Agents, the Arranger or any Lender involved in this transaction shall have occurred prior to the Second Restatement Effective Date which could, individually or in the aggregate, materially adversely effect the transaction contemplated by this Agreement.
(q) There shall be no Default or Event of Default on the Second Restatement Effective Date.
(r) The Collateral Agent and, in respect of the Canadian Borrower and its Subsidiaries, the Canadian Agent, shall have received, and be satisfied with, evidence of the Borrowers’ insurance, together with such endorsements as are required by the Loan Documents.
(s) There shall have been delivered to the Administrative Agent and/or the Canadian Agent such additional instruments and documents as the Administrative Agent or its counsel reasonably may require or request. The Administrative Agent shall notify the Borrowers and the Lenders of the Second Restatement Effective Date; provided that, in lieu of delivery of each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement.
(n) On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate from the Company, dated the Second Restatement Effective Date and addressed to Administrative Agent and the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to the transactions contemplated by this Agreement, the Company is such notice shall be conclusive and will be Solventbinding.
(o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments thereto.
Appears in 1 contract
Second Restatement Effective Date. The amendments set forth herein shall be effective as obligations of the date Lenders to make Term Loans on which the Second Restatement Effective Date and the effectiveness of the Revolving Commitments, and the obligations of the Revolving Lenders to make Revolving Loans thereunder, in each case, on the Second Restatement Effective Date, in each case, are subject to each of the following conditions shall have been satisfied (or waived in accordance with Section 10.5 of the Existing Credit Agreement):being satisfied:
(a) Company The Administrative Agent (or its predecessors-in-interestcounsel) shall have received this Agreement signed on behalf of (i) the Parent, (ii) the Borrower, (iii) each Lender (including each Issuing Bank) and (iv) the Administrative Agent;
(b) The Administrative Agent (or its counsel) shall have received the Guarantee and Collateral Agreement, executed and delivered by (i) a duly authorized officer of the Parent, the Borrower and each Guarantor and (ii) the Administrative Agent;
(c) The Administrative Agent shall have received a Borrowing Request for the Term Loans and the Revolving Loans (if any) to be made on the Second Restatement Effective Date at least three Business Days prior to the Second Restatement Effective Date;
(d) The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (except to the extent that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the Second Restatement Effective Date, except where any representation and warranty is expressly made as of a Voluntary Prepayment specific earlier date, such representation and warranty shall be true in all material respects as of any such earlier date;
(e) After giving effect to the incurrence of the Term Loans on the Second Restatement Effective Date and the effectiveness of the Revolving Commitments and the incurrence of the Revolving Loans thereunder, in each case, on the Second Restatement Effective Date, no Default or Event of Default shall have occurred and be continuing;
(f) The Administrative Agent shall have received the executed legal opinion of Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLP, counsel to the Loan Parties, in form reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such legal opinion;
(g) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Second Restatement Effective Date, substantially in the form of Exhibit E, with appropriate insertions and attachments including the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a long form good standing certificate and bringdown good standings for each Loan Party from its jurisdiction of organization;
(h) The Administrative Agent shall have received a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole on a consolidated basis) on the Second Restatement Effective Date after giving effect to the incurrence of Term Loans and Revolving Loans from a Financial Officer of the Borrower;
(i) The Administrative Agent (i) shall have received, at least five days prior to the Second Restatement Effective Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and Anti-Money Laundering Laws, including the Act, to the extent reasonably requested in writing of the Borrower at least ten days prior to the Second Restatement Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Second Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at least ten days prior to the Second Restatement Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied);
(j) The Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Second Restatement Effective Date (and the Administrative Agent acknowledges that such Voluntary Prepayment was made on October 21Date, 2009) including reimbursement or payment of all reasonable out-of-pocket expenses required to be applied to the Tranche C Term Loans on a pro rata basis in an aggregate amount not less than $10,000,000.
(b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have reimbursed or paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing to the Administrative Agent and its counsel invoiced to Company on or before the Second Restatement Effective Date and reimbursable by Company under the terms of the Existing Credit Agreement.
(h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & Xxxxx, P.A., counsel for Credit Parties, in the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and as to such other matters as Administrative Agent may reasonably request, dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(j) The Administrative Agent shall have received evidence satisfactory to it in its reasonable discretion that the Corporate Reorganization has been consummated.Borrower hereunder;
(k) The Administrative Agent Borrower shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (i) repaid (or a duly authorized committee thereofcaused to be repaid) authorizing all Existing Revolving Loans (if any) and (ii) paid to all Lenders (A) the execution, delivery holding Existing Revolving Loans all accrued and performance of this Agreement unpaid interest on their Existing Revolving Loans (and any other amendments or agreements relating to this Agreement to which it is a partyif any) and (B) all accrued and unpaid commitment fees contemplated by the extensions of credit contemplated hereunder.Amended and Restated Credit Agreement, in each case to, but not including, the Second Restatement Effective Date;
(l) The Administrative Agent All Existing Term Loans outstanding under the Amended and Restated Credit Agreement shall have received a copy of the resolutions, been (i) repaid in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors full or other governing body, as applicable, of Telvent (or a duly authorized committee thereofii) authorizing the execution, delivery and performance of the Pledge Agreement converted into Term Loans hereunder (and in any other amendments or agreements relating to the Pledge Agreement to which it is a partyevent, all accrued interest thereon shall have been paid).;
(m) The Administrative Agent shall have received true from the Borrower, for the account of each Lender holding Existing Revolving Commitments with respect to its participations in Letters of Credit, all accrued and complete copies of unpaid participation fees required by the certificate of incorporation Amended and by laws (or equivalent organizational documents) of (A) Company and (B) Telvent as of Restated Credit Agreement, in each case to, but not including, the Second Restatement Effective Date; provided that, in lieu of delivery of each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement.;
(n) On [reserved];
(o) The Administrative Agent shall have received Notes executed by the Borrower in favor of each Lender requesting Notes at least three Business Days prior to the Second Restatement Effective Date, ;
(p) The Administrative Agent shall have received a Solvency Certificate from certificate signed by a Responsible Officer of the CompanyBorrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(q) The Borrower shall have paid (or caused to be paid) to the Administrative Agent for the account of each Revolving Lender all upfront, dated consent or similar fees separately agreed by the Borrower to be paid in connection with this Agreement;
(r) The Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions in which Uniform Commercial Code financing statement or other filings or recordations should be made to evidence or perfect security interests in all assets of the Loan Parties, and such search shall reveal no liens on any of the assets of the Loan Party, except for Liens permitted by Section 6.02;
(s) Except as otherwise permitted under Section 5.09, the Administrative Agent shall have received (i) to the extent not previously delivered, the certificates representing the shares of Equity Interests pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, (ii) an Acknowledgment and Consent, substantially in the form of Annex II to the Guarantee and Collateral Agreement, duly executed by any issuer of Equity Interests pledged pursuant to the Guarantee and Collateral Agreement that is not itself a party to the Guarantee and Collateral Agreement and (iii) to the extent not previously delivered, each promissory note pledged pursuant to the Guarantee and Collateral Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank satisfactory to the Administrative Agent) by the pledgor thereof;
(t) Except as otherwise permitted under Section 5.09, each document (including, without limitation, any Uniform Commercial Code financing statement) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens permitted by Section 6.02), shall have been filed, registered or recorded or shall have been delivered to the Administrative Agent and be in proper form for filing, registration or recordation;
(u) If and to the extent required thereunder, the Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.3 of the Guarantee and Collateral Agreement; and
(v) Notwithstanding the foregoing, it is understood and agreed that the conditions in the foregoing clauses (j), (k), (l), (m), and (q) will be deemed to be satisfied if the payments required under such clauses will be funded in full, together with other amounts, with the proceeds of the initial extensions of credit hereunder on the Second Restatement Effective Date and addressed to Administrative Agent and the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to the transactions contemplated by this Agreement, the Company is and will be SolventDate.
(o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments thereto.
Appears in 1 contract
Second Restatement Effective Date. The amendments set forth herein obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall be not become effective as of until the date on which each of the following conditions shall have been is satisfied (or waived in accordance with Section 10.5 of the Existing Credit Agreement9.2):
(a) Company The Administrative Agent (or its predecessors-in-interestcounsel) shall have made received from each party hereto a Voluntary Prepayment counterpart of this Agreement signed on behalf of such party (which may include facsimile or prior to the Second Restatement Effective Date (and the Administrative Agent acknowledges that such Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on other electronic transmission of a pro rata basis in an aggregate amount not less than $10,000,000signed signature page of this Agreement).
(b) The Administrative Agent shall have received copies a Note executed by the Borrower (which may include facsimile or other electronic transmission of executed a signed signature pages page of such Note, provided that arrangements reasonably satisfactory to this Agreement from (i) the Company and (ii) the Administrative Agent have been made for delivery of the original copies thereof) in favor of each Lender requesting a Note reasonably in advance of the Second Restatement Effective Date. Notwithstanding the foregoing, no Lender shall be entitled to receive a Note on behalf of Requisite Lenders the Second Restatement Effective Date if on such date it has not returned to the Borrower the original note (unless such Lender has made other arrangements reasonably satisfactory to the Borrower), if any, issued to such Lender as defined in a lender under the Existing Amended and Restated Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company The Administrative Agent shall have delivered to the Collateral Agent received a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
favorable written opinion (d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing addressed to the Administrative Agent and its counsel invoiced to Company on or before the Lenders and dated the Second Restatement Effective Date and reimbursable by Company under the terms Date) of the Existing Credit Agreement.
(h) Subject to Section 5.15Skadden, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other actionArps, executed and delivered or caused to be executed and delivered any other agreementSlate, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxxxxx & Xxxx LLP and Xxxxxxxxxx & Xxxxx, P.A.LLP, counsel for Credit Parties, in Holdings and the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and as to such other matters as Administrative Agent may reasonably request, dated as of the Second Restatement Effective Date and otherwise Borrower in form and substance reasonably satisfactory to the Administrative Agent (and each Credit Party Agent. The Borrower hereby instructs requests such counsel to deliver such opinions opinion.
(d) Borrower and Holdings shall have duly authorized, executed and delivered a Reaffirmation Agreement.
(e) The Administrative Agent shall have received (i) certified copies of the resolutions of the board of directors of each of Holdings and the Borrower approving the transactions contemplated by the Loan Documents to Agents which it is a party and Lendersthe execution and delivery of such Loan Documents to be delivered by such entity on the Second Restatement Effective Date and (ii) all other documents reasonably requested by the Administrative Agent at least five days prior to the Second Restatement Effective Date relating to the organization, existence and good standing of Holdings and the Borrower and authorization of the transactions contemplated hereby.
(f) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each of Holdings and the Borrower certifying the names and true signatures of the officers of Holdings and the Borrower authorized to sign the Loan Documents to which it is a party, to be delivered by such entity on the Second Restatement Effective Date, and the other documents required to be delivered pursuant to Section 4.1(e) on the Second Restatement Effective Date.
(g) The Administrative Agent shall have received a certificate, dated the Second Restatement Effective Date and signed on behalf of the Borrower by a Responsible Officer or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.2 as of the Second Restatement Effective Date.
(h) The Administrative Agent shall have received true and correct copies of the financial statements referred to in Section 3.4(a), which financial statements shall be in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent hereby acknowledges that it has received such financial statements prior to the Second Restatement Effective Date and such financial statements are satisfactory to it in form and substance.
(i) On the Second Restatement Effective Date, (x) all then outstanding loans under the Amended and Restated Credit Agreement shall have been repaid in full, together with all accrued and unpaid interest and fees (including Commitment Fees (under and as defined in the Amended and Restated Credit Agreement), letter of credit fees and facing fees) and other amounts owing thereunder (except to the extent being so repaid with the initial borrowing of Revolving Loans and except to the extent letters of credit thereunder are converted to Letters of Credit hereunder in accordance with Section 2.5(l)), whether or not such interest, fees or other amounts are actually due and payable at such time pursuant to the Amended and Restated Credit Agreement and (y) Borrower shall have paid in cash to the Administrative Agent and the Arrangers all reasonable and documented out-of-pocket fees and expenses (including, without limitation, the reasonable and documented fees, disbursements and other charges of White & Case LLP, counsel to the Administrative Agent) incurred in connection with the arrangement, negotiation and consummation of the Transactions and the preparation and execution of the documents evidencing the Transactions, in each case to the extent invoiced prior to the Second Restatement Effective Date.
(j) The Administrative Agent shall have received evidence satisfactory received, to it in its reasonable discretion that the Corporate Reorganization has been consummated.
(k) extent reasonably requested by any of the Lenders at least five Business Days prior to the Second Restatement Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA Patriot Act. The Administrative Agent shall have received a copy of notify the resolutions, in form Borrower and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Agreement (and any other amendments or agreements relating to this Agreement to which it is a party) and (B) the extensions of credit contemplated hereunder.
(l) The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements relating to the Pledge Agreement to which it is a party).
(m) The Administrative Agent shall have received true and complete copies of the certificate of incorporation and by laws (or equivalent organizational documents) of (A) Company and (B) Telvent as Lenders of the Second Restatement Effective Date; provided that, in lieu of delivery of each and such notice shall be conclusive and binding. Without limiting the generality of the documents set forth provisions of Article VIII, for purposes of determining compliance with the conditions specified in this Section 3.3(l)(B)4.1, Company may deliver each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to Lender unless the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement.
(n) On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate notice from such Lender prior to the Company, dated the proposed Second Restatement Effective Date and addressed to Administrative Agent and the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to the transactions contemplated by this Agreement, the Company is and will be Solvent.
(o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments specifying its objection thereto.
Appears in 1 contract
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Second Restatement Effective Date. The amendments set forth herein effectiveness of the amendment and restatement of the First Restated Credit Agreement and of the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall be not become effective as of until the date on which each of the following conditions shall have been is satisfied (or waived in accordance with Section 10.5 of the Existing Credit Agreement9.02):
(a) Company The Administrative Agent (or its predecessors-in-interestcounsel) shall have made received from each party hereto either (i) a Voluntary Prepayment counterpart of this Agreement signed on behalf of such party or prior (ii) written evidence satisfactory to the Second Restatement Effective Date (and the Administrative Agent acknowledges (which may include telecopy or Adobe .pdf transmission of a signed signature page of this Agreement) that such Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on party has signed a pro rata basis in an aggregate amount not less than $10,000,000counterpart of this Agreement.
(b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from a favorable written opinion (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing addressed to the Administrative Agent and its counsel invoiced to Company on or before the Lenders and dated the Second Restatement Effective Date Date) of each of (i)(A) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, United States counsel for the Borrower, and reimbursable by Company under (B) Xxxxxxx X. Xxxxxxxxx, General Counsel of Intermediate Holdings, (ii) Xxxxxx and Xxxxxx, Cayman Islands counsel for the terms of Borrower and (iii) local counsel for Intermediate Holdings and the Existing Credit Agreement.
(h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken Borrower in each jurisdiction in which any Subsidiary Loan Party is organized or caused to be taken where any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided thereinMortgaged Property is located, in each case, to the extent reasonably required by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & Xxxxx, P.A., counsel for Credit Parties, in the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectively, and as to such other matters as Administrative Agent may reasonably request, dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(j) The Administrative Agent shall have received evidence satisfactory to it in its reasonable discretion that the Corporate Reorganization has been consummated.
(k) The Administrative Agent shall have received a copy of the resolutions, case in form and substance reasonably satisfactory to the Administrative Agent, provided that, if Intermediate Holdings, the Borrower and the Subsidiary Loan Parties do not, on or prior to the Second Restatement Effective Date, deliver a favorable written opinion of local counsel from any jurisdiction other than the board United States of directors America (including any State thereof and the District of Columbia) and the Cayman Islands, then such requirement may be satisfied after the Second Restatement Effective Date in accordance with Section 5.13(a). Each of Intermediate Holdings and the Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or other governing bodyits counsel may reasonably request relating to the organization or incorporation, as applicableexistence and good standing of each Loan Party, the authorization of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Agreement (the Loan Documents by each Loan Party and any other amendments or agreements legal matters relating to this Agreement to which it is a party) and (B) each Loan Party or the extensions of credit contemplated hereunder.
(l) The Administrative Agent shall have received a copy of the resolutionsLoan Documents, all in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel, of provided that, if Intermediate Holdings, the board of directors Borrower and the Subsidiary Loan Parties do not, on or other governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements relating prior to the Pledge Agreement to which it is a partySecond Restatement Effective Date, deliver any documents or certificates in respect of any Subsidiary Loan Party organized under the laws of any jurisdiction other than the United States of America (including any State thereof and the District of Columbia) and the Cayman Islands, then such requirement may be satisfied after the Second Restatement Effective Date in accordance with Section 5.13(a).
(md) The Administrative Agent shall have received true and complete copies of the certificate of incorporation and by laws (or equivalent organizational documents) of (A) Company and (B) Telvent as of the Second Restatement Effective Date; provided that, in lieu of delivery of each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section 3.1 of the Initial Credit Agreement.
(n) On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate from the Companycertificate, dated the Second Restatement Effective Date and addressed to signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Second Restatement Effective Date and signed by an executive officer or a Financial Officer of the Lenders and Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in formthe jurisdictions contemplated by the Perfection Certificate (but, scope and substance satisfactory with respect to the Loan Parties in any jurisdiction, only to the extent determined by the Administrative Agent, in its reasonable discretion, to be reasonable and demonstrating customary in such jurisdiction) and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or simultaneously are being released, provided that, if Intermediate Holdings, the Borrower and the Subsidiary Loan Parties do not, on or prior to the Second Restatement Effective Date, (i) deliver (or take any actions to perfect the security interest to be created under) any Foreign Guarantee or any Security Document required to satisfy the Collateral and Guarantee Requirement and that would be prepared under and governed by the law of any jurisdiction other than the United States of America (including any State thereof and the District of Columbia) and the Cayman Islands, (ii) deliver with respect to any Mortgaged Property a survey or a survey affidavit of no change or (iii) complete any lien search contemplated by this paragraph in respect of assets located in any such jurisdiction referred to in the immediately preceding clause (i), such requirements may be satisfied after the Second Restatement Effective Date in accordance with Section 5.13(a).
(f) The Administrative Agent shall have received the Amendment Fees and all other fees and other amounts (i) in respect of the First Restated Credit Agreement (including all accrued and unpaid fees set forth in Section 2.11 of the First Restated Credit Agreement) and (ii) due and payable on or prior to the Second Restatement Effective Date, including in each case, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by Intermediate Holdings or the Borrower under any Loan Document.
(g) Immediately after giving effect to the transactions reduction in the Commitments to become effective as of the Second Restatement Effective Date (as contemplated by this Agreementthe definition of the term “Commitments”), (i) the aggregate Revolving Exposure shall not exceed $350,000,000 and (ii) the aggregate LC Exposure shall not exceed $75,000,000. The Administrative Agent shall notify the Borrower and the Lenders of the Second Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the Company effectiveness of the amendment and restatement of the First Restated Credit Agreement and of the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is and will be Solventsatisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on May 3, 2009 (and, in the event such conditions are not so satisfied or waived, the Commitments hereunder shall terminate at such time).
(o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments thereto.
Appears in 1 contract
Second Restatement Effective Date. The amendments set forth herein amendment and restatement of the First Amended and Restated Agreement in the form hereof, and the obligations of the Lenders to make Loans and acquire participations in Swingline Loans pursuant hereto, shall be become effective as of on the date on which each of the following conditions shall have been is satisfied (or waived in accordance with Section 10.5 of the Existing Credit Agreement9.02):
(a) Company The Administrative Agent (or its predecessors-in-interestcounsel) shall have made a Voluntary Prepayment on or prior to received from the Second Restatement Effective Date (Borrower, each Lender and the Administrative Agent acknowledges either (i) a counterpart of this Agreement (which may include telecopy or electronic transmission of a signed signature page of this Agreement) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent that such Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on party has signed a pro rata basis in an aggregate amount not less than $10,000,000counterpart of this Agreement.
(b) The Administrative Agent shall have received copies of executed signature pages to this Agreement from a favorable written opinion (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed and delivered Lender Consent Letters.
(c) Company shall have delivered to the Collateral Agent a complete and correct executed copy of the Telvent Pledge Agreement along with stock certificates evidencing all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement, accompanied by corresponding stock powers executed in blank.
(d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and to the Pledge and Security Agreement.
(e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and executed by Company reflecting the Corporate Reorganization.
(f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title and interest of Company in the Closing Date Mortgaged Property, together with a date down endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such real property and containing such endorsements as the Collateral Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Collateral Agent);
(g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and expenses owing addressed to the Administrative Agent and its counsel invoiced to Company on or before the Lenders and dated the Second Restatement Effective Date Date) of Xxxxxxxx Xxxx, Vice President, Deputy General Counsel and reimbursable by Company under the terms Assistant Secretary of the Existing Credit Agreement.
Borrower (h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall have taken or caused to be taken any other action, executed and delivered internal or caused to be executed and delivered any other agreement, document and instrument (including, without limitation, UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein, in each case, to the extent reasonably required outside counsel designated by the Collateral Agent) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(i) Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Xxxxx Xxxx LLP and Xxxxxxxxxx & XxxxxBorrower), P.A., counsel for Credit Parties, substantially in the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for Telvent and Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for Telvent, in the form of Exhibit D-3 and Exhibit D-4, respectivelyB, and covering such matters relating to the Borrower, this Agreement or the Transactions as to such other matters as Administrative Agent may the Lenders shall reasonably request, dated as of the Second Restatement Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party . The Borrower hereby instructs requests such counsel to deliver such opinions to Agents and Lenders)opinion.
(jc) The Administrative Agent shall have received evidence satisfactory such documents and certificates as the Administrative Agent may reasonably request relating to it the organization, existence and good standing of the Borrower in its reasonable discretion that jurisdiction of organization, the Corporate Reorganization has been consummated.
(k) The Administrative Agent shall have received a copy authorization of the resolutionsTransactions and any other legal matters relating to the Borrower, the Subsidiaries, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors or other governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Agreement (and any other amendments or agreements relating to this Agreement to which it is a party) and (B) the extensions of credit contemplated hereunder.
(ld) The Administrative Agent shall have received a copy certificate dated the Second Restatement Effective Date signed by a Vice President or a Financial Officer of the resolutions, Borrower confirming compliance with the conditions set forth in form paragraphs (a) and substance reasonably satisfactory to (b) of Section 4.02 as of such date (but without excluding the Administrative Agent, of the board of directors representation and warranty set forth in Section 3.04(b) or other governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements relating to the Pledge Agreement to which it is a partySection 3.05).
(me) Accrued interest on all loans outstanding under the First Amended and Restated Credit Agreement to the Second Restatement Effective Date and all fees, cost reimbursements and out-of-pocket expenses accrued to or required to be paid or reimbursed on or prior to the Second Restatement Effective Date pursuant hereto (including under the First Amended and Restated Credit Agreement) or pursuant to the Commitment Letter (including upfront fees), to the extent invoiced prior to (or, in the case of cost reimbursement and out-of-pocket expenses, not fewer than two Business Days prior to) the Second Restatement Effective Date, shall have been paid or will be paid on the Second Restatement Effective Date substantially concurrently with the effectiveness of this Agreement.
(f) The Administrative Agent shall have received true all documentation and complete copies of other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the certificate of incorporation Patriot Act. The Administrative Agent shall notify the Borrower and by laws (or equivalent organizational documents) of (A) Company and (B) Telvent as the Lenders of the Second Restatement Effective Date; provided that, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the First Amended and Restated Credit Agreement in lieu the form hereof and obligations of delivery of the Lenders to make Loans hereunder shall not become effective unless each of the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an Authorized Officer of Company certifying that there have been no material amendments to those documents previously delivered to the Administrative Agent on the Closing Date foregoing conditions is satisfied (or waived pursuant to Section 3.1 of 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2018 (and, in the Initial Credit Agreement.
(n) On the Second Restatement Effective Date, Administrative Agent shall have received a Solvency Certificate from the Company, dated the Second Restatement Effective Date and addressed to Administrative Agent and the Lenders and in form, scope and substance satisfactory to Administrative Agent, and demonstrating that after giving effect to the transactions contemplated by this Agreementevent such conditions are not so satisfied or waived, the Company is and will be SolventCommitments shall terminate at such time).
(o) Company shall have delivered to Administrative Agent an originally executed Effective Date Certificate, together with all attachments thereto.
Appears in 1 contract
Samples: Five Year Credit Agreement (Hp Inc)
