Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfied: (a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent. (b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date. (c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent. (d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g). (e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date. (f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates. (g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof. (h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date. (i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act. (j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, ) on which date is August 8, 2014) when each of the following conditions shall have been satisfied:satisfied (or waived by the Sixth Amendment Incremental Term Lenders):
(a) The Administrative Agent Agents shall have received counterparts of this Amendment, duly Amendment executed by the Borrowers and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Sixth Amendment Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.Lenders;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect After giving effect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificatethe transactions contemplated hereby, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions representations and warranties set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V 5 of the Credit Agreement (as amended by this Amendment) and any in the other Loan Document shall be Documents are true and correct in all material respects as of the Effective Date, with the same effect as though made on and as of the date hereof; provided thatsuch date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they date (in which case such NY\6293685.6 representations and warranties shall be true and correct in all material respects as of such earlier date; provided) and immediately prior to and after giving effect to the Effective Date, furtherno Default or Event of Default shall have occurred and be continuing;
(c) After giving effect to this Amendment, thatthe incurrence of the Sixth Amendment Incremental Term Loans and the other transactions contemplated herby, any representation the Senior Secured Leverage Ratio, calculated on a pro forma basis, shall not be greater than 4.50 to 1.00;
(d) The Administrative Agents shall have received a legal opinion of Xxxxxx Xxxx & Xxxxxxxx LLP, counsel to the Borrower Parties, addressed to the Lender Group and warranty that is qualified as reasonably satisfactory to “Material Adverse Effect” the Administrative Agents;
(e) The Administrative Agents shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or similar language shall be true assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Amendment and, with respect to Borrowers, authorizing the borrowings hereunder;
(f) The Administrative Agents shall have received a certificate of an Authorized Signatory of the Administrative Borrower confirming compliance with the conditions precedent set forth in all respects on such respective dates.clause (b) and clause (c) of this Section 4;
(g) No Default The Borrowers shall exist, or would result from have paid all reasonable and documented costs and expenses of the effectiveness of Administrative Agents in connection with this Amendment or from (including the application reasonable and documented fees, disbursements and other charges of Xxxxxx & Xxxxxxx LLP as counsel to the proceeds thereof.Lead Arrangers); and
(h) The Administrative Agent (or its counsel) Borrowers shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior paid to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective DateTerm Loan Administrative Agent, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Sixth Amendment Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (Lender as of the “Consent”) prior to 5:00 PM (New York City time) on August 5Effective Date, 2014, consent closing fees in an amount equal to 0.250.50% of the aggregate amount of such Sixth Amendment Incremental Term Lender’s principal amount Sixth Amendment Incremental Term Loan Commitments; provided that such closing fees shall be payable to such Sixth Amendment Incremental Term Lender out of the proceeds of its Sixth Amendment Incremental Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to and when funded on the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. This Amendment shall become effective as The Effective Date of this --------------------------- Agreement will be on the first date (such date being referred to as the “Amendment No. 3 Effective Date”, on which date is August 8, 2014) when each all of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) no law, regulation, order, judgment or decree of any governmental authority has, and the BorrowerLender had not received any notice that litigation is pending or threatened which is likely to, (i) enjoin, prohibit or restrain the making of an Advance hereunder or (ii) impose or result in the imposition of a material adverse effect;
(B) Holdings, all due diligence materials requested by the Lender from the Borrower have been delivered to the Lender and such due diligence materials are in form and substance satisfactory to the Lender;
(C) the GuarantorsBorrower has furnished to the Lender each of the following, all in form and substance satisfactory to the Lender:
(Di) this Agreement, duly executed by the Borrower;
(ii) the Incremental Term B-2 Note, duly executed by the Borrower in favor of the Lender, ;
(Fiii) the Required Lenders and (G) Borrower's Guaranty, duly executed by the Administrative Agent.Borrower; a Guaranty executed by each Guarantor which has not heretofore provided a Guaranty to the Lender;
(biv) The Administrative Agent shall have received a Committed Loan Notice with respect Security Agreement executed by Borrower and each Guarantor which has not heretofore provided a Security Agreement to the Incremental Term B-2 Loans not later Lender;
(v) to the extent Borrower or any Guarantor has any Indebtedness other than 5:30 p.m. Permitted Indebtedness, pay-out letters, releases and UCC-3 Termination Statements, where applicable, from all third-party creditors releasing all Liens securing any such Indebtedness;
(New York, New York timevi) certificates of good standing for the Borrower and each of the Guarantors from its jurisdiction of incorporation and each other jurisdiction where the nature of its business requires it to be qualified as a foreign corporation;
(vii) a Secretary's Certificate from the Borrower and each Guarantor acquired by the Borrower on the Business Day or prior to the requested date of the Amendment No. 3 Effective Date.hereof, and an Incumbency Certificate from Pledgor;
(cviii) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersa certificate, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to Lender, signed by the extent such concept exists) from the applicable secretary of state chief financial officer of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated Borrower stating that as of the Amendment No. 3 Effective Date, signed by a Responsible Officer no Event of Default or Unmatured Default has occurred and is continuing and setting forth the calculation of the Borrower, confirming satisfaction FirstAmerica Group's Scaled Assets as of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent Effective Date, and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct in all material respects with full force and effect as if made on and as the Effective Date;
(ix) a written opinion of the date hereof; provided thatBorrower's and Guarantors' counsel, addressed to the Lender, in form and substance satisfactory to the Lender;
(x) to the extent that such representations not included in the foregoing, the documents, instruments and warranties specifically refer to an earlier date, they shall be true and correct in all material respects agreements set forth on the closing list attached as of such earlier dateExhibit E hereto; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.---------
(gxi) No Default shall existsuch other documents as the Lender or its counsel may have reasonably requested;
(xii) the Pledge Agreement, or would result from the effectiveness of this Amendment or from the application duly executed by Pledgor; and
(xiii) payment in full of the proceeds thereof$500,000.00 loan origination fee.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Firstamerica Automotive Inc /De/)
Conditions of Effectiveness. This Amendment shall become effective as upon the satisfaction (or waiver in writing) of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedconditions:
(a) The Administrative Agent shall have received Agent’s receipt of four (4) copies of this Amendment, Amendment duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.each Loan Party;
(b) The Administrative Agent shall have received Agent’s receipt of a Committed Loan Notice with respect completed documentation information questionnaire, in form and substance satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.Agent;
(c) The Administrative Agent shall have receivedAgent’s receipt of a certificate from the secretary or an assistant secretary of Xxxxxx, evidencing the incumbency of all officers who are authorized to sign this Amendment and any Other Documents on behalf of itselfXxxxxx, and attaching (i) Xxxxxx’x certificate of incorporation and by-laws and all amendments thereto, and (ii) a copy of the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersresolutions, in form and substance reasonably satisfactory to Agent, of the Administrative Agent.board of directors of Xxxxxx authorizing the execution, delivery and performance of this Amendment and the transactions contemplated herein;
(d) The Administrative Agent shall have received such (x) certificates Agent’s receipt of good standing certificates for Xxxxxx dated not more than thirty (30) days prior to the extent such concept exists) from date hereof, issued by the applicable secretary of state of Xxxxxx’x jurisdiction of incorporation and each jurisdiction where the state conduct of organization Xxxxxx’x business activities or the ownership of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).its properties necessitates qualification;
(e) Payment Agent’s receipt of executed copies of the Acquisition Agreement and all reasonable fees agreements, instruments and expenses due documents executed in connection therewith, and evidence that the transactions contemplated by such documentation were consummated prior to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior or simultaneously to the Amendment No. 3 No.1 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.;
(f) The representations Agent’s receipt of UCC, tax and warranties judgment lien searches with respect to Xxxxxx, the results of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document which shall be true and correct in all material respects on and as of the date hereof; provided that, acceptable to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.Agent;
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application Agent’s receipt of the proceeds thereof.disclosure schedules with respect to the Acquisition of Xxxxxx as such schedules relate to Xxxxxx, revised Schedules to the Loan Agreement and related information reasonably requested by Agent (“Revised Schedules/Information”) reflecting the Acquisition and the issuance of Indebtedness under the Supplemental Note Documentation. The Revised Schedules/Information shall not reflect a Material Adverse Effect on the operations or condition (financial or otherwise) of the Loan Parties, individually or in the aggregate and the revised Schedules to the Loan Agreement shall be deemed to supplement the existing Schedules to the Loan Agreement for all purposes of the Loan Agreement;
(h) The Administrative Agent (Agent’s receipt of executed copies of the Supplemental Note Documentation and all agreements, instruments and documents executed in connection therewith, and evidence that the transactions contemplated by such documentation were consummated prior to or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior simultaneously to the Amendment No. 3 No.1 Effective Date.; and
(i) To the extent Agent’s receipt of such other certificates, instruments, documents and agreements as may be reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” Agent or its counsel, each of which shall be in form and anti-money laundering rules substance reasonably satisfactory to Agent and regulations, including without limitation the PATRIOT Actits counsel.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”) on which, which date is August 8and only if, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received this Amendmentreceived, duly executed in form and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) substance satisfactory to the Administrative Agent., counterparts of this Amendment executed by each of the Loan Parties and those Lenders comprising Required Lenders,
(b) The Administrative Agent shall have received a Committed Loan Notice with respect received, in form and substance satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkAdministrative Agent, New York time) on the Business Day prior to the requested date counterparts of each of the Amendment No. 3 Effective DatePledge Agreement, the Security Agreement and the Intercreditor Agreement executed by each of the parties thereto.
(c) The Administrative Agent shall have received, on behalf of itself, be satisfied that all filings necessary or desirable in order to perfect and protect the First Lien Collateral Agent first priority liens and security interests created under the Pledge Agreement and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated Security Agreement will be made promptly following the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative AgentDate.
(d) The Administrative Agent shall have received such (x) certificates of good standing (received, in form and substance satisfactory to the extent such concept existsAdministrative Agent, (i) from the applicable secretary of state an amendment of the state of organization of 2016 Term Loan Agreement and (ii) an amendment to the 2017 Credit Agreement, in each Loan Party, certificates of resolutions or case modifying the underlying agreement to account for the terms herein and making certain other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the corresponding modifications.
(e) The Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and shall have received (yi) a certificate, dated as of the Amendment No. 3 Effective Date, certificate signed by a Responsible Officer of the BorrowerBorrower stating that the Mortgages and Assignments of Leases on the Initial Mortgaged Properties, confirming satisfaction in substantially the form attached thereto (the “Approved Real Estate Documents”), have been approved by the Borrower for release and recording in accordance herewith and (ii) original signature pages for each of the conditions set forth Approved Real Estate Documents which the Agents shall hold in Sections 4(f) and (g).
escrow in accordance with this subsection (e) Payment ). The parties acknowledge and agree that the release from escrow of all reasonable fees the original signature pages for the Approved Real Estate Documents shall be in the Agents’ sole discretion and expenses due shall not be subject to any condition, occurrence or consent, and the Loan Parties hereby irrevocably authorize the Agents to attach the original signature pages to the applicable Approved Real Estate Documents upon the release thereof from escrow. Notwithstanding the foregoing, the original signature pages shall not be released from escrow and the Approved Real Estate Documents will not be filed or recorded unless and until the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, reasonably concludes that the Lenders holding Term B-2 Loans immediately before have completed their required due diligence in respect of the Amendment NoFlood Laws. 3 Effective Date under For the existing Credit Agreement shall have been paid all accrued avoidance of doubt, no Lien or security interest provided for in any Approved Real Estate Document is or will be effective until the signature pages are released from escrow and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Dateattached thereto.
(f) The representations and warranties All of the Borrower and each other Loan Party contained in Article V reasonable out-of-pocket expenses of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counselincluding the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Datebeen paid in full.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as The effectiveness of the first date amendment and restatement of the Existing Credit Agreement pursuant to Section 1 of this Agreement (such date being referred to as the “Amendment No. 3 Restatement Effective Date”, which date is August 8, 2014) when each shall be subject to the satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent Arrangers or their counsel shall have received this Amendment, duly executed and delivered by (A) from each of the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders, the Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the Revolving Commitments, the Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the Outstanding Amount of the Existing Term Loan A, the New Term Loan A Lenders and the New Term Loan B Lenders, either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Arrangers (Gwhich may include facsimile or other electronic transmission of a signed signature page of this Agreement) the Administrative Agentthat such party has signed a counterpart of this Agreement.
(b) The Receipt by the Administrative Agent shall have received a Committed Loan Notice with respect of opinions of legal counsel to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and each Lender, dated as of the Lendersdate hereof, and in form and substance reasonably satisfactory to the Administrative Agent.
(c) As of the date hereof, (i) there shall not have occurred a Borrower Material Adverse Effect since December 31, 2009 and (ii) there shall not have been any Target Material Adverse Effect and no event shall have occurred or circumstance exist that would reasonably be expected to result in a Target Material Adverse Effect.
(d) The Receipt by the Administrative Agent shall have received such (x) certificates of good standing (the following, in form and substance satisfactory to the extent such concept existsAdministrative Agent:
(i) from copies of the applicable secretary Organization Documents of state each Loan Party certified to be true and complete by the appropriate Governmental Authority of the state or other jurisdiction of organization its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of each such Loan Party, Party to be true and correct as of the date hereof;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Agreement and the other Loan Documents to which such Loan Party is a party; and
(yiii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation, the state of its principal place of business and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g)Material Adverse Effect.
(e) Payment of all reasonable fees and expenses due On or prior to the date hereof, the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case shall have received all invoiced expenses required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days or prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Datedate hereof.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of On or prior to the date hereof; provided that, 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 and the Arrangers) to the extent that such representations and warranties specifically refer invoiced prior to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesthe date hereof.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application The satisfaction of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by conditions precedent set forth in Section 5.01 of the Borrower for each Lender that requests such a Note at least two Business Days Restated Credit Agreement. Notwithstanding the foregoing, if the Restatement Effective Date has not occurred prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date4:00 p.m., New York time, on January 31, 2011, this Agreement shall be null and void, the Administrative Agent obligations of the New Term Loan A Lenders and New Term Loan B Lenders to make Loans shall have received, prior to not become effective and the effectiveness of Existing Credit Agreement shall continue in full force and effect as if this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActAgreement had never been entered into.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The First Amendment shall become be effective as of the first date (such date being referred February 1, 1996, subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfied:(except as otherwise waived by Determining Lenders):
(a) The the Administrative Agent Lender shall have received counterparts of this AmendmentFirst Amendment executed by the Determining Lenders;
(b) the Administrative Lender shall have received counterparts of this First Amendment executed by the Borrower and acknowledged by PEI and PUM;
(c) the Administrative Lender shall have received for (i) NationsBank a $7,500,000 Revolving Credit Note and a $15,000,000 Term Loan Note, (ii) Union Bank a $5,000,000 Revolving Credit Note and a $10,000,000 Term Loan Note, and (iii) City National Bank a $2,500,000 Revolving Credit Note and a $5,000,000 Term Loan Note, each duly executed by the Borrower (collectively, the "NOTES");
(d) the Administrative Lender shall have received such amendments, modifications or restatements to the Collateral Documents as the Administrative Lender shall require (collectively, the "AMENDED COLLATERAL DOCUMENTS"), together with stock certificates evidencing 100% of the Capital Stock of the Borrower and delivered related stock powers;
(e) the Administrative Lender shall have received an Officer's Certificate of the Borrower containing (i) certificate of incorporation of the Borrower issued by the Delaware Secretary of State, (Aii) bylaws of the Borrower, (Biii) Holdingscorporation resolutions of the Borrower authorizing the execution and delivery of this First Amendment, the Notes and the Amended Collateral Documents to be executed by the Borrower and (Civ) signatures and titles of officers of the Borrower authorized to sign this First Amendment, the Notes and the Amended Collateral Documents to be executed by the Borrower;
(f) the Guarantors, representations and warranties set forth in Section 3 shall be true and correct; and
(D) the Incremental Term B-2 Lender, (F) the Required Lenders and (Gg) the Administrative Agent.
(b) The Administrative Agent Lender and the Lenders shall have received a Committed Loan Notice with respect in form and substance satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent Lender and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Partyother documents, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and instruments as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g)Lenders shall require.
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Power One Inc)
Conditions of Effectiveness. This Amendment shall become effective as The effectiveness of each and all of the first date (such date being referred modifications contained in the Amendment is subject to as the “Amendment No. 3 Effective Date”satisfaction, which date is August 8in form and substance satisfactory to the Lender, 2014) when of each of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent A. Lender shall have received 4 duplicate original counterparts of this Amendment, duly Amendment executed by Borrower and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent B. Lender shall have received 1 original Replacement Revolving Credit Note in form satisfactory to Lender.
C. Lender shall have received a Committed Loan Notice secretarial certificate of the Borrower in a form reasonably acceptable to Lender, certifying as true and accurate, copies of the organizational documents and the incumbency of officers of the Borrower, and attaching authorizing resolutions for the Westcon Acquisition and the incurrence of additional indebtedness under the Credit Agreement.
D. Lender shall have received a true, correct and complete copy of the Merger Agreement covering the Westcon Acquisition and all Westcon Disclosure Schedules, which Merger Agreement shall be satisfactory to the Lender.
E. Lender shall have received an amendment to Borrower’s pledge security agreement with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. stock of Westcon Acquisition Sub, together with the original stock certificate accompanied by an executed stock power in blank.
F. Lender shall have received appropriate UCC searches against Westcon.
G. Lender shall have received (New Yorki) a guaranty from Westcon Acquisition Sub, New York time(ii) on a security agreement from Westcon Acquisition Sub, and (iii) an officer’s certificate from Westcon Acquisition Sub evidencing the Business Day prior authorization of the guaranty and security agreements, all in form satisfactory to Lender.
H. As of the requested effective date of the Amendment No. 3 Effective Datethis Amendment, no Default or Event of Default shall have occurred and be continuing.
(c) I. The Administrative Agent representation and warranties contained in Section 3 hereof and in the Credit Agreement shall have receivedbe true, correct and complete as of the effective date of this Amendment as though made on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agentsuch date.
(d) J. The Administrative Agent Lender shall have received such (x) certificates of good standing (other approvals or documents as the Lender may reasonably request, and all legal matters incident to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due foregoing shall be satisfactory to the Administrative Agent Lender and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Transcat Inc)
Conditions of Effectiveness. 2.1 This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”when, which date is August 8and only when, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received this Amendment, duly executed counterparts of this Amendment and delivered by applicable Security Documents with respect to the New Applicant;
(b) Bank shall have received a certificate of an officer of the New Applicant certifying as to the incumbency and genuineness of the signature of each officer of the New Applicant executing this Amendment and the applicable Security Documents and certifying that attached thereto is a true, correct and complete copy of (A) the Borrowermemorandum of association (or equivalent), as applicable, of the New Applicant and all amendments thereto, (B) Holdings, the bye-laws or other governing document of the New Applicant as in effect on the date hereof and (C) resolutions duly adopted by the Guarantorsboard of directors (or other governing body) of the New Applicant authorizing and approving the transactions contemplated hereunder and the execution, (D) delivery and performance of this Amendment and the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.applicable Security Documents;
(bc) The Administrative Agent Bank shall have received certificates as of a Committed Loan Notice recent date of the good standing (or equivalent) of the New Applicant under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(d) Bank shall have received an opinion of counsel to the New Applicant addressed to Bank with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkApplicant, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itselfthis Amendment, the First Lien Collateral Agent applicable Security Documents, and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date such other matters as Bank shall request (which such opinions shall expressly permit reliance by permitted successors and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates assigns of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (gBank).; and
(e) Payment The New Applicant shall have paid to Bank all documented out-of-pocket costs and expenses of all Bank in connection with the preparation, negotiation, execution and delivery of this Amendment and the applicable Security Documents (including, without limitation, the reasonable fees and out-of-pocket expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower counsel for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information Bank with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.thereto);
Appears in 1 contract
Samples: Standby Letter of Credit Agreement (Renaissancere Holdings LTD)
Conditions of Effectiveness. This Amendment shall become not be effective as of until the first date (such date being referred to as the “Sixth Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions precedent has been satisfied in full, provided, that in the event all such conditions precedent are not met on or before December 31, 2010, this Amendment shall have been satisfiedbe null and void and of no further force or effect:
(a) The Administrative the Borrower and Guarantor shall have delivered to Agent four duly executed counterparts of this Amendment;
(b) Agent shall have received this Amendment, duly executed such evidence as Agent may reasonably require to verify that the Borrower has incurred Debt pursuant to the Second Lien Credit Agreement in a principal amount of $175,000,000 in compliance with Section 9.01(k) of the Credit Agreement (as amended herein) and delivered by has applied the proceeds of such Debt issuance to pay (A) the BorrowerLoans in an aggregate principal amount to cure any Deficiency created by a reduction in the Borrowing Base pursuant to Section 2.08(f) (as amended herein), (B) Holdingsthe Oaktree Note, and (C) closing costs associated with the GuarantorsSecond Lien Credit Agreement;
(c) Borrower shall have paid to Administrative Agent, for the benefit of the Lenders, an amendment fee equal to 37.5 bps of the aggregate amount of Commitments for the Lenders party to this Amendment;
(Dd) the Incremental Term B-2 LenderBorrower shall have paid all reasonable fees and expenses which are due and payable by the Borrower on or prior to the date hereof under the Loan Documents, (F) and, to the Required Lenders extent invoiced, reimbursement or payment by the Borrower of all reasonable expenses required to be reimbursed or paid by the Borrower under the Loan Documents, including the reasonable fees and (G) the Administrative disbursements of Agent.’s counsel, Xxxxxx and Xxxxx, LLP;
(be) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date certified copies of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Second Lien Collateral Agent Credit Agreement and the LendersSecond Lien Loan Documents, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent., including, without limitation, counterparts of an Intercreditor Agreement approved by the Majority Lenders (the “Intercreditor Agreement”), fully executed by Borrower, Guarantors (as defined in the Intercreditor Agreement), First Lien Agent (as defined in the Intercreditor Agreement), and Second Lien Agent (as defined in the Intercreditor Agreement);
(df) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state counterparts of the state Master Assignment and Assumption in the form of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Exhibit A attached hereto (the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower“Master Assignment”), in each case required executed by Fortis Capital Corp., BNP Paribas, Xxxxx Fargo, The Royal Bank of Scotland plc, and Regions Bank, and acknowledged and consented to by Borrower and Guarantor, which shall be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days effective immediately prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.effectiveness of this Amendment;
(fg) The all representations and warranties of the Borrower and each other Loan Party Guarantor contained in Article V of the Credit Agreement and any other Loan Document Documents shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.respects;
(h) The Administrative no Material Adverse Effect shall have occurred and be continuing; and
(i) Agent (or its counsel) shall have received a Note certificate from Borrower duly and properly executed by a Responsible Officer certifying that the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Dateconditions in Sections 4(b), (g) and (h) have been satisfied.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective in the order and in the manner herein described, as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, upon which date is August 8, 2014) when each of the following conditions precedent set forth below in this Section 3 shall have been satisfied:be satisfied or waived in accordance with Section 9.08 of the Unamended Credit Agreement (such date, the "Amendment Effective Date"):
(a) The Administrative Agent shall have received this Amendment, duly executed representations and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions warranties set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Amended Credit Agreement and any the other Loan Document Documents shall be true and correct in all material respects as of the Amendment Effective Date, with the same effect as though made on and as of the date hereofsuch date; provided that, to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided, further, that, that any representation and warranty that is qualified as to “"materiality," "Material Adverse Effect” " or similar language shall be is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(gb) No Both on and as of the date hereof and on and as of the Amendment Effective Date, both before and after giving effect to this Amendment, no event has occurred and is continuing that constitutes a Default shall existor an Event of Default under the Unamended Credit Agreement, or would result from the effectiveness Amended Credit Agreement and the other Loan Documents.
(c) The execution, delivery of, and the performance of this Amendment or from by Holdings, the application Company and the other Borrowers are permitted under the terms of the proceeds thereofall Material Indebtedness.
(hd) The Administrative Agent (or its counsel) shall have received from Holdings, the Company, the other Borrowers and each Subsidiary Loan Party, the Administrative Agent and the Additional Revolving Lenders party hereto either (i) a Note executed by the Borrower for each Lender that requests counterpart of this Amendment signed on behalf of such a Note at least two Business Days prior party or (ii) written evidence satisfactory to the Amendment No. 3 Effective DateAdministrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(ie) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the The Administrative Agent shall have received, prior on behalf of itself and the Lenders and each Issuing Bank on the Amendment Effective Date, a favorable written opinion of (i) Xxxxx Xxxx LLP, special counsel for the Loan Parties, (ii) Xxxxx Xxxxxx, in-house counsel for the Loan Parties, and (iii) Xxxxxxx & Xxxx, Wisconsin counsel for certain of the Loan Parties, in each case (A) dated the Amendment Effective Date, (B) addressed to the effectiveness Administrative Agent and the Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(f) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) only if such document or item has not previously been delivered, or shall have changed since the later of (x) its last date of its previous delivery to the Administrative Agent pursuant to the Unamended Credit Agreement, and (y) the Amendment Effective Date, a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, as applicable, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date of the Amendment Effective Date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date of the Amendment Effective Date or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment Effective Date and certifying:
(A) (1) that attached thereto is a true and complete copy of the bylaws (or partnership agreement, limited liability company agreement, operating agreement or other equivalent governing documents) of such Loan Party as in effect on the Amendment Effective Date and at all times since the date of the resolutions described in clause (B) below, or (2) that the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party, as in effect on the Amendment Effective Date, have not been modified, rescinded or amended since the latter of (x) its last date of delivery to the Administrative Agent pursuant to the Unamended Credit Agreement and (y) the Amendment Effective Date,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrowers, the borrowings thereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Amendment Effective Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed or delivered pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent or the Additional Revolving Lenders on the Amendment Effective Date may reasonably request (including without limitation, tax identification numbers, addresses and any information requested pursuant to "know your customer" requirements).
(g) the Administrative Agent shall have received from a Financial Officer of the Company, an officer's certificate to the effect that the execution, delivery and performance of this Amendment, all documentation the Amended Credit Agreement and the other information Loan Documents by the Loan Parties will not conflict with, result in a breach of or constitute a default under, or give rise to a right of, or result in, any cancellation or acceleration under, any indenture, credit or loan agreement or other documents or instruments to which any Loan Party is party with respect to any Material Indebtedness.
(h) The Agents shall have received to the extent invoiced, reimbursement or payment of all reasonable outofpocket expenses (including reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP and local counsel) required to be reimbursed or paid by the Loan Parties required by regulatory authorities hereunder or under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actany Loan Document.
(ji) The Administrative Agent shall have received for the ratable account and benefit of each Additional Revolving Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to executing this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount a nonrefundable fee equal to 0.250.10% of such Lender’s the aggregate principal amount of Term B-2 LoansAdditional Revolving Commitments of such Additional Revolving Lender. For purposes of determining compliance with the conditions specified above, Revolving Credit Loans and/or Revolving Credit Commitmentseach Lender shall be deemed to have consented to, as applicable, outstanding immediately 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 the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Amendment No. 3 Effective DateDate specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender's ratable portion of the initial Borrowing, if any.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Plastics Group Inc)
Conditions of Effectiveness. This Amendment shall become be effective as of February 10, 2003 (the first date (such date being referred to as "EFFECTIVE DATE"), upon the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfiedconditions:
(a) The Administrative Agent the Purchasers shall have received executed originals of this Amendment and the Third Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) satisfactory to the Required Lenders Holders in all respects, to the Credit Agreement, dated as of July 23, 2001, among the Company, Xxxxxxxxx Weavers, Inc., Hamco, Inc. and Crown Crafts Infant Products, Inc., as borrowers, Wachovia Bank, National Association (Gsuccessor by merger to Wachovia Bank, N.A.), as agent, and Wachovia Bank, National Association (successor by merger to Wachovia Bank, N.A.), Banc of America Strategic Solutions, Inc. (assignee of Bank of America, N.A.) and The Prudential Insurance Company of America, as lenders, each agreement being dated the Administrative AgentEffective Date, in form and substance satisfactory to the Purchasers.
(b) The Administrative Agent Company shall have received a Committed Loan Notice with respect paid all costs and expenses (including attorney's fees and expenses) incurred by any Purchaser through the Effective Date, pursuant to statements submitted to the Incremental Term B-2 Loans not later than 5:30 p.m. Company (New Yorkwhich statements may include estimates of time and expenses to be incurred on and after the dates of posting of actual time and expenses set forth therein, New York time) on the Business Day prior which estimated amounts shall be subject to the requested date of the Amendment No. 3 Effective Datesubsequent adjustment to reflect actual time and expenses subsequently posted).
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document herein shall be true and correct in all material respects on and as of the date hereof; provided thatthere shall exist on the date hereof, after giving effect to this Amendment, no Event of Default or Default; there shall exist no material adverse change in the extent that such representations and warranties specifically refer to an earlier datebusiness, they shall be true and correct in all material respects as of such earlier date; providedproperties, furtherprospects, thatoperations or condition, any representation and warranty that is qualified as to “Material Adverse Effect” financial or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall existotherwise, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (Company or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
Subsidiaries since March 31, 2002 other than (i) To the extent reasonably requested discontinuance of the operations of Burgundy Interamericana SA de CV, as set forth in Paragraph 2 hereof, or (ii) as reported by the Arrangers Company in writing not less than five (5) Business Days prior its quarterly reports on Form 10-Q filed with the Securities and Exchange Commission for quarterly periods subsequent to March 31, 2002; and the Company shall have delivered to the Amendment No. 3 Effective Date, Purchasers a certificate signed by a senior officer of the Administrative Agent shall have received, prior Company to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actsuch effect.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Subordinated Note and Warrant Purchase Agreement (Crown Crafts Inc)
Conditions of Effectiveness. This Fourth Amendment shall become effective as of the first date (such date being referred to as the “Fourth Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedwhen:
(a) The the Administrative Agent shall have received received: (i) counterparts of this AmendmentFourth Amendment executed by each of the Borrowers, duly executed and delivered the Lenders and, acknowledged by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.; and (ii) the Fourth Amendment Documents executed by the parties thereto;
(b) The the Company shall have paid to the Administrative Agent shall have received a Committed Loan Notice with respect to and/or Banc of America Securities LLC (“BAS”) those fees as set forth in that certain Fee letter between the Incremental Term B-2 Loans not later than 5:30 p.m. Company, the Administrative Agent and BAS dated May 21, 2010 (the “Fee Letter”), including without limitation an upfront fee for the account of each (i) New YorkLender executing this Fourth Amendment in the amount of 0.50% of such New Lender’s Commitment, New York time(ii) on Existing Lender executing this Fourth Amendment in the Business Day amount of 0.25% of the portion such Existing Lender’s Commitment that it held prior to the requested date Fourth Amendment Effective Date and which it continues to hold after the Fourth Amendment Effective Date, and (iii) Existing Lender executing this Fourth Amendment in the amount of 0.50% of the incremental portion of such Existing Lender’s Commitment that represents an increase from such Existing Lender’s Commitment prior to the Fourth Amendment No. 3 Effective Date.
(c) The the Administrative Agent shall have receivedreceived a: (i) Secretary’s Certificate for each of the Borrowers: (A) attesting as to the incumbency of authorized officers; (B) certifying that there have been no changes in the certificate of incorporation or bylaws of the Borrowers, on behalf since the date of itselfthe Secretary’s Certificate delivered in connection with the execution and delivery of the Credit Agreement; and (C) attaching true and correct copies of evidence of authorization of the Borrowers’ execution and full performance of this Fourth Amendment, the First Lien Collateral other Fourth Amendment Documents and all other documents and actions required hereunder; and (ii) good standing or subsistence certificates from the jurisdiction of incorporation of each Borrower (or in the case of any Dutch Borrower, an extract from the commercial register showing the existence of such Dutch Borrower) certifying to the due organization and good standing of each Borrower;
(d) the Administrative Agent shall have received a favorable opinion of Drinker Xxxxxx & Xxxxx LLP, counsel to the domestic Borrowers and Xxxxx & XxXxxxxx, counsel to the Foreign Obligors in form and substance reasonably acceptable to the Administrative Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York its counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and each Lender;
(e) the LendersCompany shall have paid all reasonable out-of-pocket costs and expenses of the Administrative Agent (including the reasonable fees, in form charges and substance reasonably satisfactory disbursements of counsel to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (invoiced to the extent such concept existsCompany in reasonable detail) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.Fourth Amendment; and
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No no Default shall existhave occurred and be continuing, or would occur as a result from the effectiveness of this Amendment or from the application of the proceeds thereoftransactions contemplated by this Fourth Amendment.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 5 Effective Date”, which date ) is August 8, 2014subject to the conditions precedent that (i) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment, Amendment duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Subsidiary Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders Lenders, each Increasing Lender (if any), each New Lender and (G) the Administrative Agent.
, (bii) The the Administrative Agent shall have received a Committed Loan Notice with respect to such instruments and documents as the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have receivedreasonably request, on behalf including a written opinion of itselfthe Borrower’s counsel, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersDLA Piper LLP (US), in form and substance reasonably satisfactory acceptable to the Administrative Agent.
, (diii) The the Administrative Agent shall have received such (x) certificates of good standing (all fees and other amounts due and payable on or prior to the Amendment No. 5 Effective Date, including, to the extent such concept exists) from the applicable secretary invoiced, reimbursement or payment of state all out-of-pocket expenses (including reasonable fees, charges and disbursements of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as counsel for the Administrative Agent may reasonably require evidencing Agent) required to be reimbursed or paid by the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Borrower in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans toLoan Documents, but not including, the Amendment No. 3 Effective Date.
(fiv) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Increasing Lender (other than GECC, in if any) and each New Lender that delivers its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (by no later than the “Consent”) prior to 5:00 PM (New York City time) on August 5date and time specified by the Administrative Agent, 2014, consent fees an upfront fee in an amount equal to 0.25% the amount previously disclosed to the Increasing Lenders and the New Lenders, (v) the Administrative Agent shall (x) have received counterparts from the Borrower and the “Required Holders” (under and as defined in the NPPSA (as defined below)) of an amendment to that certain Note Purchase and Private Shelf Agreement, dated as of June 1, 2010, by and among the Borrower and the holders of Notes party thereto from time to time (the “NPPSA”), which amendment to the NPPSA modifies the definitions of “Consolidated EBITDA” and “Capital Expenditures” under the NPPSA in the same manner as this Amendment modifies the definitions of Consolidated EBITDA and Capital Expenditures under the Credit Agreement and permits the aggregate principal amount or the committed amount under the Credit Agreement to equal or exceed $335,000,000 (with no other substantive provisions unless the form and substance thereof are reasonably satisfactory to the Administrative Agent) and (y) be reasonably satisfied that such amendment becomes effective concurrently with the effectiveness of this Amendment and (vi) the Administrative Agent shall have made such reallocations of each Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement (including the New Lenders) as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects such Lender’s principal amount Applicable Percentage of Term B-2 Loans, the Revolving Credit Exposure under the Credit Agreement as amended hereby, which such reallocation, to the extent that the Administrative Agent determines in its reasonable discretion such reallocation to be necessary, the Administrative Agent agrees to do on the date hereof. The Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to on the Amendment No. 3 5 Effective DateDate and the reallocation described in clause (vi) above, in each case on the terms and in the manner set forth in Section 2.16 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as The obligations of Administrative Agent, Issuing Bank and the first date (such date being referred Banks to as amend the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each Credit Agreement and grant the consent provided herein are subject to the fulfillment of the following conditions shall have been satisfiedprecedent:
(a) The Borrower shall have delivered to Administrative Agent multiple counterparts of this Amendment, as requested by Administrative Agent, duly executed by Borrower and Guarantors;
(b) Borrower shall have delivered an executed Note for each Bank;
(c) Borrower shall have delivered (i) copies of resolutions of Borrower and each Guarantor authorizing the transactions contemplated hereby, certified as of the date hereof by a Responsible Officer of each; (ii) certificate of Secretary of Borrower and each Guarantor certifying the names and true signatures of the officers or such Person authorized to execute, deliver and perform, as applicable, this Amendment, the Notes and all other Loan Documents to be delivered by it hereunder; and (iii) the Organization Documents of Borrower and each Guarantor as in effect on the date hereof;
(d) Borrower shall have delivered a current certificate for each of Borrower and Guarantors (i) from its state of incorporation, evidencing its proper registration as a corporation, and (ii) from each state wherein such Person is qualified under the laws of such jurisdiction wherein its ownership, lease or operation of its Property or the conduct of its business requires such registration or qualification and where the failure to be so qualified would reasonably be expected to result in a Material Adverse Effect;
(e) Borrower shall have delivered an opinion of counsel for Borrower and the Guarantors as to matters described in Sections 6.01, 6.02, 6.03, 6.04 and 6.16 of the Credit Agreement, and such other matters as Administrative Agent may request, in the form satisfactory to Administrative Agent dated as of the date hereof;
(f) Administrative Agent shall have received this Amendment, duly executed evidence that Borrower has entered into an amendment to the Second Lien Credit Agreement on terms and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the conditions satisfactory to Administrative Agent.;
(bg) The Administrative Agent Borrower and, as applicable, each Subsidiary shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. evidence of Marketable Title on at least eighty percent (New York, New York time80%) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The net present value of Borrower’s and each Subsidiary’s Borrowing Base Properties subject to no other liens, other than Permitted Liens, as evidenced by opinions of title or other title information reasonably satisfactory to Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Banks;
(h) Administrative Agent, the First Lien Collateral Agent and the Lenders, Banks shall be satisfied with the condition of Borrower’s and its Subsidiaries’ Borrowing Base Properties and each Person’s compliance with Environmental Laws;
(i) Borrower shall have delivered to Administrative Agent insurance certificates in form and substance reasonably satisfactory to the Administrative Agent., from Borrower’s insurance carriers reflecting the current insurance policies required under Section 7.06 of the Credit Agreement including any necessary endorsements to reflect Administrative Agent as “loss payee” or “additional insured,” as applicable, for the ratable benefit of the Banks;
(dj) The Borrower shall have delivered certifications from Borrower and any Subsidiary party to the Security Documents that no “Building” (as defined in applicable flood insurance regulations) is included in the Mortgaged Property;
(k) Borrower shall have delivered such other approvals, opinions, documents or materials as Administrative Agent or any Bank may reasonably request, including, without limitation, any new Mortgages or amendments or supplements to existing Mortgages, financing statements or amendments to financing statements;
(l) Borrower shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment made payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date owing under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, under any separate fee agreement entered into by the Amendment No. 3 Effective Date.
(fparties pursuant to Section 2.06(a) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement including such fees and any other Loan Document shall be true expenses specified in Section 8 hereof and correct in payment of all material respects on outstanding invoices of Xxxxxx and as of the date hereof; provided thatXxxxx, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “LLP;
(m) no Material Adverse Effect” or similar language Effect shall be true and correct in all respects on such respective dates.have occurred; and
(gn) No no Default or Event of Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereofhave occurred.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of Section 2 of this Amendment shall become effective as of the first date (such date being referred be subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedprecedent being satisfied or waived by the Administrative Agent:
(a) The Borrowers and all of the Lenders shall have duly executed and delivered this Amendment pursuant to Section 13.04 of the Loan Agreement; provided, however, that this Amendment shall have no binding force or effect unless all conditions set forth in this Section 3 have been satisfied;
(b) Borrowers and the Administrative Agent shall have received this Amendmentduly executed and delivered the Amended Fee Letter;
(c) The Irish Borrower shall have duly executed and delivered or provided the following documents:
(i) Co-Borrower Assumption Agreement, pursuant to which the Irish Borrower agrees to become a “Borrower” for all purposes of the Loan Agreement;
(ii) Joinder Agreement, pursuant to which the Irish Borrower agrees to become a “Grantor” for all purposes of the Security Agreement;
(iii) Certified copies of the constitutive documents of the Irish Borrower and of resolutions of the Board of Directors (and/or shareholders, if applicable) or other applicable governing body of the Obligor authorizing the making and performance by it of the Loan Documents to which it is a party; and
(iv) A certificate of the Irish Borrower as to the authority, incumbency and specimen signatures of the persons who have executed the Loan Documents and any other documents in connection herewith on behalf of the Irish Borrower;
(d) The Irish Borrower shall have provided to Administrative Agent true and correct copies of that certain License and Assignment Agreement, dated as of the date hereof, between the Irish Borrower and Aeterna Zentaris GmbH, a corporation incorporated under the laws of Germany (“AZ”), together with all schedules and exhibits thereto, and all other material documents relating to the transactions contemplated thereby (collectively, the “Macrilen License Agreement”);
(e) The Macrilen License Agreement (i) shall have been duly executed and delivered by (A) the BorrowerIrish Borrower and AZ, (Bii) Holdings, (C) shall be in the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed form provided to the Administrative Agent, and (iii) shall provide for the First Lien Collateral Agent and the Lenders, in form and substance acquisition of North American marketing rights of Macrilen under terms reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed Lenders, including terms that are intended to mitigate insolvency risks to the Lenders applicable in writing between the event of an insolvency of the licensor or the Irish Borrower and permitting the collateral assignment of, and grant to the Administrative Agent and/or a senior perfected security interest in, both the Arrangers license rights and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.proceeds relating thereto;
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default or Event of Default under the Loan Agreement shall exist, have occurred and be continuing or would result from the effectiveness transactions contemplated by the Macrilen License Agreement; and
(g) Borrowers shall have paid or reimbursed Administrative Agent and the Lenders for all of this Amendment their reasonable out of pocket costs and expenses (including the reasonable fees and expenses of counsel to Administrative Agent and the Lenders, and any sales, goods and services or from the application other similar Taxes applicable thereto, and printing, reproduction, document delivery and travel costs), pursuant to Section 13.03(a)(i)(z) of the proceeds thereofLoan Agreement.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (above written when, and only when, on or before September 15, 2003, the Agent shall have received counterparts of this Amendment executed by the Borrower and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Agent that such date being referred to as Lender has executed this Amendment and the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each Agent shall have additionally received all of the following conditions shall have been satisfieddocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Required Lenders (unless otherwise specified) and in sufficient copies for each Lender:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by Certified copies of (i) the resolutions of the Board of Directors of (A) the BorrowerBorrower approving this Amendment, the Security Agreement, the Intercreditor and Collateral Agency Agreement (the Security Agreement and the Intercreditor and Collateral Agency Agreement are, collectively, the “Collateral Agreements”) to which it is or is to be a party, and the matters contemplated hereby and thereby and (B) Holdingseach other Loan Party evidencing approval of the Consent and the Collateral Agreements to which it is or is to be a party, (C) and the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders matters contemplated hereby and thereby and (Gii) all documents evidencing other necessary corporate, partnership or limited liability company action, as the Administrative Agentcase may be, and governmental approvals, if any, with respect to this Amendment, the Consent, the Collateral Agreements and the matters contemplated hereby and thereby.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date A certificate of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, Secretary or an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Amendment, the Consent and the Collateral Agreements to which they are or are to be a party and the other documents to be delivered hereunder and thereunder.
(c) Counterparts of the Consent appended hereto (the “Consent”), executed by each of the Subsidiary Guarantors that were parties to the Subsidiary Guaranty and the Subordination Agreement as of March 31, 2003, and supplements to the Subsidiary Guaranty and the Subordination Agreement executed by each of the Subsidiary Guarantors that were not parties to such agreements as of March 31, 2003.
(d) The Security Agreement, duly executed by the Borrower and each other Loan Party, together with:
(i) certificates representing the Pledged Shares referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to in the Security Agreement indorsed in blank,
(ii) evidence that financing statements have been duly filed on or before such day under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(iii) completed requests for information, dated on or before such day, listing the financing statements filed in the jurisdictions referred to in clause (ii) above that name the Company or any Guarantor Subsidiary as debtor, together with copies of such other financing statements.
(e) The Intercreditor and Collateral Agency Agreement, duly executed by the Collateral Agent, the Agent and duly authorized representatives of each of the other creditors entitled to share in the benefits of the Collateral. By execution of this Amendment, each of the Lenders hereby authorizes the Agent to execute the Intercreditor and Collateral Agency Agreement and agrees to the appointment of the Collateral Agent thereunder.
(f) A favorable opinion of Xxxxxxx X. Xxxxx, Xx., Senior Counsel for the Loan Parties, in substantially the form of Exhibit A hereto, and as to such other matters as any Lender through the Agent may reasonably request.
(g) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in Article V Section 3 and in each of the Credit Agreement and any other Loan Document shall be true and Collateral Agreements delivered pursuant to this Section 4 are correct in all material respects on and as of the date hereof; provided that, to the extent that of such representations certificate as though made on and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, date other than any such representations or warranties that, any representation and warranty that is qualified as by their terms, refer to “Material Adverse Effect” or similar language shall be true and correct in all respects on a date other than the date of such respective dates.certificate; and
(gii) No Default shall exist, or would result from event has occurred and is continuing that constitutes a Default. This Amendment is subject to the effectiveness provisions of this Amendment or from the application Section 8.01 of the proceeds thereofCredit Agreement.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Loan Agreement (Consol Energy Inc)
Conditions of Effectiveness. This The amendments to the Credit Agreement set forth in SECTION 2 of this First Amendment shall become not be effective as of until the first date (such date being referred to as date, the “Amendment No. 3 Effective "FIRST AMENDMENT EFFECTIVE Date”, which date is August 8, 2014") when each of the following conditions shall have precedent has been satisfiedsatisfied in full:
(a) The Administrative Agent shall have received the following:
(i) a counterpart of this AmendmentFirst Amendment executed by each of the parties hereto (which may be by telecopy transmission);
(ii) Notes executed by the Borrower in favor of those Lenders increasing their Commitments hereunder and requesting such Notes, duly executed and delivered by each in a principal amount equal to the increase in each such Lender's Committed Sum;
(iii) from each Loan Party, such certificates of secretary, assistant secretary, manager, or general partner, as applicable, as the Administrative Agent may require, certifying (A) resolutions authorizing the Borrowerexecution and performance of this First Amendment and the other Loan Documents which such Person is executing in connection herewith, (B) Holdingsthe incumbency and signature of the officer executing such documents, and (C) the Guarantorsthat there has been no change in such Person's Organizational Documents since November 6, 2002 (D) the Incremental Term B-2 Lenderor, (F) the Required Lenders and (G) the Administrative Agent.if there has been a change, attaching a copy thereof);
(biv) The Administrative Agent shall have received a Committed Loan Notice with respect to copy of the Incremental Term B-2 Loans not later than 5:30 p.m. Tesoro Asset Purchase Agreement, and schedules and exhibits thereto (New York, New York time) on the Business Day as supplemented or amended prior to the requested date of the First Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received), on behalf of itself, certified by the First Lien Collateral Agent Borrower as true and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenderscomplete, in form and substance reasonably satisfactory to the Administrative Agent.;
(dv) The executed counterparts of the Mortgages and Security Agreements granting the Administrative Agent a first priority lien (subject only to Permitted Liens and, with respect to the Galveston Assets (defined below) and the Harbor Island Assets (defined below), the title exceptions and qualifications referenced in SECTION 3(a)(xiii) below) on (A) the Vessels (as defined in the Tesoro Asset Purchase Agreement) (the "TESORO VESSELS"), (b) other than the water bottom lease, coastal easements, and lease described on SCHEDULE 4(b) attached hereto, the Acquired Assets located on Pelican Island, Galveston County, Texas (the "GALVESTON ASSETS") and the Acquired Assets located on Harbor Island, Nueces County, Texas (the "HARBOR ISLAND ASSETS"), (C) two fertilizer plants located in Ector County, Texas, and one fertilizer plant located in Hale County, Texas (xxe "PLANTS"), (D) the assets acquired by the Borrower from Cross Oil Refining & Marketing, Inc. in October, 2003, and described on SCHEDULE 3(a)(v)(D) hereto (collectively, the "CROSS ASSETS"), and (E) the vessels acquired by the Borrower from Cenac Towing Company, Inc. in October, 2003, and described on SCHEDULE 3(a)(v)(E) hereto (collectively, the "CENAC VESSELS") (the Tesoro Vessels, the Galveston Assets, the Harbor Island Assets, the Plants, the Cross Assets, and the Cenac Vessels are collectively referred to herein as the "MORTGAGED ASSETS"), each of which shall be in form and substance satisfactory to the Administrative Agent and shall have been duly authorized, executed and delivered by each of the parties thereto;
(vi) evidence that all recordings or filings of UCC financing statements, the Mortgages and such other documents as may be reasonably deemed necessary by the Administrative Agent to perfect the rights, titles and interests of the Lenders and the Administrative Agent in the Mortgaged Assets shall have been made, or arrangements satisfactory to the Administrative Agent shall have received been made for the making of such recordings and filings in the appropriate places or offices;
(xvii) certificates opinions dated as of good standing (the First Amendment Effective Date, in form and substance reasonably satisfactory to the extent such concept exists) Administrative Agent, from the applicable secretary of state of the state of organization of each Loan PartyBaker Botts L.L.P., certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each counxxx xo xxxx Loan Party as and the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and General Partner;
(yviii) a certificateduly completed Compliance Certificate, dated as of the First Amendment No. 3 Effective Date, substantially in the form of EXHIBIT C to the Credit Agreement, signed by a Responsible Officer of the Borrower and a Responsible Officer of the MLP, demonstrating pro forma compliance with SECTIONS 7.15(a), (b), (c) and (d) of the Credit Agreement as of the end of the most recent fiscal quarter for which the Borrower is required to provide financial statements pursuant to SECTION 6.01(c), after giving effect to the Tesoro Acquisition and the making of the Loans on the First Amendment Effective Date, and, in each case, including the revenue adjustments and cost savings expected, in the good faith judgment of the management of the Loan Parties, to be achieved in connection with the Tesoro Acquisition to the extent such revenue adjustments and cost savings could be reflected in pro forma financial information complying with the requirements of Article XI of Regulation S-X under the Securities and Exchange Act of 1934, as if the Tesoro Acquisition had been consummated as of the first day of the relevant fiscal quarter;
(ix) a certificate of a Responsible Officer of the Borrower, dated as of the First Amendment Effective Date, providing unaudited pro forma financial statements of the Borrower as of the end of the most recent fiscal quarter for which the Borrower is required to provide financial statements pursuant to SECTION 6.01(c), including balance sheet and statements of income and cash flow, giving effect on a pro forma basis (in a manner satisfactory to the Administrative Agent) to the Tesoro Acquisition and the making of the Loans on the First Amendment Effective Date, and, in each case, including the revenue adjustments and cost savings expected, in the good faith judgment of the management of the Loan Parties, to be achieved in connection with the Tesoro Acquisition to the extent such revenue adjustments and cost savings could be reflected in pro forma financial information complying with the requirements of Article XI of Regulation S-X under the Securities and Exchange Act of 1934, as if the Tesoro Acquisition had been consummated as of the first day of the relevant fiscal quarter;
(x) a certificate signed by a Responsible Officer of the Borrower, confirming satisfaction dated as of the conditions First Amendment Effective Date, certifying that:
(1) the closing of the Tesoro Acquisition is being consummated on such date, simultaneously with the funding of the Loans under the Acquisition Subfacility being made on such date, and (2) the acquisition contemplated by the Additional Purchase Agreement (as defined in the Tesoro Asset Purchase Agreement) is being consummated on such date, simultaneously with the closing of the Tesoro Acquisition;
(B) attached to such certificate are additions to the Annexes to the Pledge and Security Agreement executed by the Borrower (the "BORROWER SECURITY AGREEMENT"), and, as amended by such additions, the Annexes to the Borrower Security Agreement and the Annexes to the Pledge and Security Agreements executed by the MLP and by Martin Operaxxxx XP LLC are accurate and complete in all material respects;
(C) except as otherwise set forth in Sections 4(fon SCHEDULE 5(b) to this First Amendment, both before and (g).
(e) Payment of all reasonable fees and expenses due to after taking into account the Administrative Agent Tesoro Acquisition and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid funding of Loans on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectivenesssuch date, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article ARTICLE V of the Credit Agreement and any other Loan Document shall be in the Collateral Documents are true and correct in all material respects on and as of the such date hereof; provided that, except to the extent that such representations and warranties specifically refer relate solely to an earlier date;
(D) both before and after taking into account the Tesoro Acquisition, they shall be true no Default or Event of Default has occurred and correct in all material respects is continuing as of such earlier date;
(E) since December 31, 2002 there has occurred no material adverse change in (x) the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole, or the MLP and its Subsidiaries, taken as a whole, or (y) any of the Mortgaged Assets or the Acquired Assets;
(F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) of the Credit Agreement; providedand
(G) there are no actions, furthersuits, thatinvestigations or proceedings pending or, to the knowledge of the MLP or the Borrower, threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any representation Guarantor, the MLP General Partner, or any of their respective properties, that (x) if adversely determined, could reasonably be expected to materially and warranty that is qualified as adversely affect the Borrower, any Guarantor, or any of the Mortgaged Assets or the Acquired Assets, or (y) seek to “Material Adverse Effect” affect or similar language shall be true and correct in all respects on such respective dates.pertain to any transaction contemplated hereby, the Tesoro Acquisition, or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(gxi) No Default shall exista certificate of a Responsible Officer, or would result from the effectiveness of this Amendment or from the application dated as of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the First Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, (A) listing the Administrative Agent shall have receivedMaterial Agreements executed in connection with, prior to or assumed in connection with, the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulationsTesoro Acquisition, including without limitation the PATRIOT ActTransportation Services Agreement between the Borrower and Midstream Fuel Service LLC dated as of December 23, 2003, and the Terminal Services Agreement between the Borrower and Midstream Fuel Service LLC dated as of December 23, 2003, each executed as of the First Amendment Effective Date by Martin Resource Managemexx Xxxporation and the Borrower, (B) attaching a copy of each of such Material Agreement, and (C) certifying that the Borrower has no knowledge of any material default thereunder by any party thereto;
(xii) an appraisal of the Mortgaged Assets and the other Acquired Assets from an independent appraiser reasonably acceptable to the Administrative Agent setting forth the orderly liquidation value of (A) the Galveston Assets, the Tesoro Vessels and the Plants, which shall be at least $20,000,000, and (B) the other Acquired Assets;
(xiii) with respect to the Mortgaged Assets that are real estate Collateral, (A) a commitment to issue a mortgagee's title policy and a pro forma policy issued by a title company reasonably satisfactory to the Administrative Agent (i) for all such real estate Collateral other than the Galveston Assets and the Harbor Island Assets, in form and substance reasonably satisfactory to the Administrative Agent (including such endorsements as the Administrative Agent shall reasonably require), and (ii) for the Galveston Assets and the Harbor Island Assets, containing such title exceptions and qualifications as are contained in the deeds or other instruments of conveyance under which the Borrower takes title to the Galveston Assets and the Harbor Island Assets in accordance with the Tesoro Asset Purchase Agreement, and in each case together with the payment of all premiums for the issuance of such title policy, and (B) if required by the Administrative Agent, a survey (if such Mortgaged Assets are located in Texas, such survey shall be a Texas Board of Professional Land Surveyors Surveyor's Manual Category 1A Condition II Land Title Survey, and if such Mortgaged Assets are located in Louisiana, such survey shall be a Class B Property Boundary Survey meeting the minimum surveying standards established by the Louisiana Professional Engineering and Land Surveying Board; provided however, that if the underwriter of the mortgagee's policies of title insurance requires surveys of a different type, the Borrower shall provide surveys meeting such requirements);
(xiv) with respect to the Borrower's existing real property Collateral located in Jefferson County, Texas, a commitment to issue a mortgagee's title policy and a pro forma policy issued by a title company reasonably satisfactory to the Administrative Agent, which shall be in form and substance substantially similar to existing title insurance policy for such real property, together with the payment of all premiums for the issuance of such title policy;
(xv) applications for certificates of documentation and such other documentation reasonably required by Administrative Agent to evidence transfer of title for each U.S. Flag Vessel from Tesoro to the Borrower and to evidence the Administrative Agent's Liens thereon;
(xvi) an opinion of Borrower's insurance broker as to insurance coverage for the U.S. Flag Vessels that constitute Mortgaged Assets;
(xvii) receipt of such landlord consents, tenant estoppels and other third-party approvals and consents in connection with the pledge by the Borrower of the Mortgaged Assets (other than with respect to the Galveston Assets and the Harbor Island Assets), as required by the Administrative Agent;
(xviii) receipt of Phase I environmental study of the Acquired Assets with results satisfactory to the Administrative Agent;
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may require.
(jb) The All fees due and payable at the First Amendment Effective Date shall have been paid, including the fees required by SECTION 6 of this First Amendment, and the Borrower shall have paid Attorney Costs of the Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the extent invoiced prior to, or on, the First Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The amendments to the Credit Agreement set forth in Section 2 of this Second Amendment shall become be effective as of on the first date (such date being referred to as the “Second Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of provided that the following conditions Administrative Agent shall have been satisfiedreceived the following:
(a) The Administrative Agent shall have received a counterpart of this Amendment, duly Second Amendment executed and delivered by each of the parties hereto (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.which may be by telecopy transmission);
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers of each Loan Party Officer as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and Second Amendment;
(yc) a certificatecertificate from the appropriate governmental authority in the Borrower’s state of organization evidencing that the Borrower is in good standing, and a certificate of a Responsible Officer certifying that no amendments have been made to the Borrower’s Organization Documents since January 24, 2003, or if such amendments have been made, certifying a copy of such amendments;
(d) a certificate of a Responsible Officer certifying that there has been no event or circumstance since the date of the financial statements dated as of December 31, 2003 delivered pursuant to Section 6.01(a) of the Credit Agreement which has or could reasonably be expected to have a Material Adverse Effect;
(e) an opinion of counsel to the Borrower with respect to the Credit Agreement as amended, substantially in the form attached as Exhibit E to the Credit Agreement;
(f) evidence that the commitments under the Amended and Restated 364-Day Credit Agreement, dated as of the Amendment No. 3 Effective DateJanuary 24, signed 2003, by a Responsible Officer of and among the Borrower, confirming satisfaction the Administrative Agent, the Existing Lenders, and the other agents named therein, as amended by that certain First Amendment to Amended and Restated 364-Day Credit Agreement dated as of January 12, 2004, have been, or concurrently with the conditions set forth in Sections 4(f) Second Amendment Effective Date are being, terminated, and that the Borrower has repaid all amounts owed thereunder upon such termination;
(g).
(e) Payment of all reasonable arrangement and upfront fees and expenses due to of the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case Arranger required to be paid on by the Borrower concurrently with the Second Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.and
(h) The such other assurances, certificates, documents, consents or opinions as the Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective DateAgent, the Administrative Agent shall have receivedL/C Issuer, prior to or the effectiveness of this Amendment, all documentation Required Lenders reasonably may require and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Acttimely request.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become be effective as of October 10, 2000, so long as all corporate actions of Borrower and the first date (such date being referred Significant Subsidiaries taken in connection herewith and the transactions contemplated hereby shall be satisfactory in form and substance to as the “Amendment No. 3 Effective Date”Administrative Agent and Lenders, which date is August 8, 2014) when and each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received All reasonable out-of-pocket fees and expenses in connection with the Loan Documents, including this Amendment, duly executed including legal and delivered other professional fees and expenses incurred on or prior to the date of this Amendment by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Administrative Agent or any Lender, (F) including, without limitation, the Required Lenders fees and (G) the Administrative Agentexpenses of Winsxxxx Xxxhxxxx & Xinixx X.X. and Arthxx Xxxexxxx X.X.P., shall have been paid.
(b) The Administrative Agent and each Lender shall have received each of the following:
(i) year-end consolidated and consolidating (on a Committed Loan Notice with respect group basis) financial statements of Domestic Borrower and its Subsidiaries for the fiscal year 2000, containing a balance sheet, income statement, statement of cash flows and an audit report by PricewaterhouseCoopers, accountants for the Borrower and its Subsidiaries, accompanied by (i) a Compliance Certificate of the Chief Financial Officer of Domestic Borrower, (ii) a certificate of PricewaterhouseCoopers to the Incremental Term B-2 Loans effect that they have reviewed and are familiar with the Credit Agreement and that, in examining such financial statements, they did not later than 5:30 p.m. become aware of any fact or condition which then constituted a Default or Event of Default, except for those, if any, described in reasonable detail in such certificate, and (New Yorkiii) the management letter and report on internal controls, New York timeif any, delivered by PricewaterhouseCoopers in connection with their audit;
(ii) on the Business Day prior to the requested date a certificate of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersBorrower, in form and substance reasonably satisfactory to the Administrative Agent.
, Required Lenders and Administrative Agent's counsel, certifying (dA) The Administrative Agent shall have received such (x) certificates of good standing (as to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Partyaccuracy in all material respects, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized after giving effect to act as a Responsible Officer in connection with this Amendment and the Waiver in Section 1 hereof, of the representations and warranties set forth in the Credit Agreement, this Amendment and the other Loan Documents, and (yB) that there exists no Default or Event of Default, after giving effect to this Amendment and the Waiver in Section 1 hereof, and the execution, delivery and performance of this Amendment will not cause a Default or Event of Default;
(iii) payment of the Amendment Fee;
(iv) the Fleet Amendment, executed by all parties thereto, providing for, among other things, (A) a certificatewaiver of any and all defaults existing on October 10, 2000 under that certain Reimbursement Agreement between Sencorp Systems, Inc. ("Sencorp"), Fleet and Domestic Borrower, as guarantor, dated as of July 1, 1998 (as amended, extended, renewed or restated from time to time, the Amendment No. 3 Effective Date"Reimbursement Agreement"), signed by a Responsible Officer and (B) an amendment to the Reimbursement Agreement providing for an amendment fee of no more than $100,000 and containing amendments satisfactory to Required Lenders, including without limitation, amendments to the provisions thereof so that (1) the covenants contained therein are no more restrictive on Domestic Borrower, confirming satisfaction Sencorp or any other Subsidiaries of Domestic Borrower than those contained in the conditions set forth Credit Agreement, as amended hereby, (2) the date upon which Fleet may demand cash collateral in Sections 4(f) and (g).
(e) Payment the amount of all reasonable fees obligations of Sencorp and expenses due Domestic Borrower under the Reimbursement Agreement is extended to July 2, 2001, (3) the Administrative Agent and fee charged for the Arrangers aforementioned extension is no more than $20,000, (as agreed to in writing between 4) the Administrative Agent and/or the Arrangers and the Borrower)letter of credit fee thereunder shall be no more than 3.50%, in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days per annum, prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectivenessApril 2, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued 2001, and unpaid interest on their Term B-2 Loans tono more than 4.00%, but not includingper annum, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and at any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided thattime thereafter, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior additional cash collateral will be provided to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees Fleet in an amount equal to 0.25% $50,000 per month until the aggregate amount of such Lender’s principal amount additional cash collateral is equal to the Specified Amount, and (6) a $75,000 failure fee in the event that neither (a) a new letter of Term B-2 Loanscredit facility, Revolving Credit Loans and/or Revolving Credit Commitmentsacceptable under the terms of the Bond Documents, is established nor (b) the obligations of Sencorp and Domestic Borrower under the Reimbursement Agreement are completely collateralized with cash, has occurred on or before July 2, 2001; and
(v) such other documents, certificates and instruments as applicable, outstanding immediately the Administrative Agent shall require prior to the Amendment No. 3 Effective Datedate hereof.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of (including the first date amendments contained in SECTION 1 and agreements contained in SECTION 2) are subject to the satisfaction (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014or written waiver) when each of the following conditions shall have been satisfied:(the date of satisfaction of such conditions being referred to herein as the “Eighth Amendment Effective Date”):
(a) The This Amendment shall have been duly executed by the Borrowers, the Subsidiary Guarantors, each 2024 Refinancing Term Loan B Lender and each 2024 Refinancing Revolving Credit Lender, each Issuing Bank, the Term Loan B Agent, the Revolver Administrative Agent shall have received this Amendmentand the Collateral Agent (which may include a copy transmitted by facsimile or other electronic method), duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) to the Administrative Agent.Agents;
(b) The Administrative Agent shall have received a Committed Loan Notice A Borrowing Request in accordance with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date Section 2.2 of the Amendment No. 3 Effective Date.Credit Agreement;
(c) The Administrative Agent Agents shall have receivedreceived favorable legal opinions of (A) Xxxxxx, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes Xxxx & Xxxx Xxxxxxxx LLP, New York special counsel for to the Loan Parties, dated (B) Xxxxx & Xxxxxx, L.L.P., Nevada counsel to the Amendment No. 3 Effective Date Loan Parties, (C) Xxxxxx and addressed Xxxxxx (Cayman) LLP, Cayman Islands counsel to the Loan Parties, (D) Xxxxxx & Xxxxxxx (London) LLP, English law counsel for the Administrative Agents, (E) Xxxxxx Xxxx AG, Swiss counsel to the Loan Parties with respect to capacity of each Subsidiary Guarantor incorporated in Switzerland to enter into the Loan Documents to which it is a party, (F) Xxxxxxxx Xxxxx Xxxx XX, Swiss counsel to the Collateral Agent regarding the validity of the confirmation of the Swiss first-ranking quota pledge agreements granted over the quotas of the Subsidiary Guarantors incorporated in Switzerland and (G) DLA Piper Luxembourg S.à x.x., Luxembourg counsel to the Loan Parties with respect to the capacity of the Luxembourg Loan Parties to enter into the Loan Documents and subsistence of security interest, in each case in form and substance reasonably satisfactory to the Administrative Agent, Agents;
(d) The Administrative Agents shall have received a certificate signed by a Responsible Officer of the First Lien Collateral Agent Borrowers as to the matters set forth in paragraphs (g) and (h) of this SECTION 3;
(e) The Administrative Agents shall have received (I) a certificate dated as of the LendersEighth Amendment Effective Date of the corporate secretary or an assistant or associate corporate secretary or director (or such other officer reasonably acceptable to the Administrative Agents) of each of the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
Agents, certifying (di) The Administrative Agent shall have received that attached thereto is a true and complete and up to date copy of the articles or certificate of incorporation, memorandum and articles of association or other comparable organizational documents including any certificate on change of name and all amendments thereto of such Loan Party certified (xother than in the case of any Loan Party that is a Cayman Islands exempted company or any Loan Parties incorporated in England and Wales) certificates as of good standing (to a recent date by the extent such concept exists) from the applicable secretary of state (or comparable Governmental Authority) of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification, (ii) if applicable, that attached thereto is a true and complete copy of the state bylaws or comparable governing documents of organization of each such Loan Party, certificates as then in effect and as in effect at all times without amendment of supersession from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors or managers or other action, incumbency certificates and/or other certificates comparable governing body or bodies of Responsible Officers of each such Loan Party as (and, if applicable all the Administrative Agent may reasonably require evidencing holders of the identityissued shares of such Loan Party), authority (i) authorizing the execution, delivery and capacity performance of each Responsible Officer thereof authorized this Amendment and any related Loan Documents to act as which it is a Responsible Officer party, (ii) approving the terms of, and the transactions contemplated by, this Amendment any related Loan Documents, and the continuing security interest, or granting of security interest, over Collateral pursuant to the relevant Collateral Documents; (iii) authorizing a specified person or persons to execute this Amendment, any other Loan Document and related documents on its behalf; and (iv) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (if relevant) to be signed and/or dispatched by it under or in connection with this Amendment, any other Loan Document and related documents, which are in full force and effect without amendment or supersession as of the date of the certificate, (iv) as to the incumbency and genuineness of the signature of each officer, director, manager or other comparable authorized manager or attorney of such Loan Party, executing this Amendment or any of such other Loan Documents, and attaching all such copies of the documents described above together with, in the case of the Loan Parties incorporated in the Cayman Islands and HBL Ltd., copies of their internal registers of directors and officers, registers of members (except the register of members of the Parent) and registers of mortgages and charges (except such register of HBL Ltd.), (v) in case of any Loan Party formed, organized or incorporated under the laws of Switzerland, a copy of the minutes of the quotaholder resolutions of each of the such Loan Party duly adopted by the relevant sole quotaholder of such such Loan Party approving the terms of, and the transactions contemplated by, and authorizing the execution, delivery and performance of the Amendment, any Loan Documents and related documents to which it is a party, (vi) in case of any Loan Party formed, organized or incorporated under the laws of Switzerland, a copy of a certified up-to-date excerpt from the commercial register of each such Loan Party and (yvii) in case of any Loan Party incorporated under the laws of England and Wales, (A) an up-to-date copy of the PSC Register (within the meaning of section 790C(1) of the Companies Act 2006) and (B) that the borrowing, guaranteeing or security, as appropriate, of the Commitments will not cause any borrowing, guarantee, security or other similar limit binding on it to be exceeded, and (II) in respect of (i) any Luxembourg Loan Party, (ii) WHBL Luxembourg S.à x.x., (iii) HLF Luxembourg Distribution S.à x.x. and (iv) Herbalife Africa (together the “Luxembourg Entities” and each a certificate“Luxembourg Entity”), a manager’s certificate dated as of the Eighth Amendment No. 3 Effective Date signed by a manager of the relevant Luxembourg Entity, certifying the following items: (A) an up-to-date copy of the articles of association of the relevant Luxembourg Entity; (B) an electronic true and complete certified excerpt of the Luxembourg Companies Register pertaining to the relevant Luxembourg Entity dated as of the date of this Amendment; (C) an electronic true and complete certified certificate of non-registration of judicial decisions or administrative dissolution without liquidation (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) dated as of the date of this Amendment issued by Luxembourg Insolvency Register (Registre de l’insolvabilité, Reginsol) held and maintained by the Luxembourg Companies Register and reflecting the situation no more than one Business Day prior to the date of this Amendment; (D) a true, complete and up-to-date board resolutions approving the entry by the relevant Luxembourg Loan Party into, among others, the Loan Documents; (E) the relevant Luxembourg Entity is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), reprieve from payment (sursis de paiement), general settlement with creditors, administrative dissolution without liquidation (dissolution administrative sans liquidation), judicial reorganisation by mutual agreement (sursis en vue de la conclusion d’un accord amiable extra-judiciaire), judicial reorganisation by collective agreement (réorganisation judiciaire par accord collectif), judicial reorganisation by transfer of assets or activities (réorganisation judiciaire par transfert sous autorité de justice) or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (F) a true and complete specimen of signatures for each of the managers or authorized signatories having executed for and on behalf of the relevant Luxembourg Loan Party the Loan Documents;
(f) The Administrative Agents shall have received a certificate as of a recent date of the good standing of each of the Loan Parties (other than the Luxembourg Loan Parties or any Loan Parties incorporated in England and Wales or any Loan Parties incorporated in Switzerland) under the laws of its jurisdiction of organization, from the secretary of state (or comparable Governmental Authority) of such jurisdiction as well as corresponding bring-down good standing certificates dated as of the Eighth Amendment Effective Date, signed by save that, no such bring-down good standing certificate is required for any Loan Party that is a Responsible Officer Cayman Islands exempted company where the above recent date of the Borrower, confirming satisfaction certificate of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two good standing initially provided is no earlier than 10 Business Days prior to the Eighth Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.;
(fg) No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(h) The representations and warranties of the Borrower and each other Loan Party contained set forth in Article V SECTION 5(b) of this Amendment are true and correct and the Credit Agreement representations and any other warranties of each Loan Document shall be Party set forth in SECTIONS 5(a) and (c) of this Amendment are true and correct in all material respects on and as of the date hereof; provided thatEighth Amendment Effective Date (immediately after giving effect to this Amendment) as if made on as of such date, except in the case of any representations and warranties expressly stated to the extent that relate to a specific earlier date, in which case such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, in each case such materiality qualifier shall not be applicable to any representation and warranty representations or warranties that is already are qualified as to or modified by materiality or “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.”;
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(hi) The Administrative Agent (or its counsel) Agents shall have received a Note executed by solvency certificate in the Borrower for each Lender that requests such form of Exhibit J of the Credit Agreement from a Note at least two Business Days prior to Responsible Officer of the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information Parent with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” solvency of the Parent and anti-money laundering rules and regulationsits Subsidiaries, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECCon a consolidated basis, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior after giving effect to the Amendment No. 3 Effective Date.Eighth Amendment;
Appears in 1 contract
Samples: Credit Agreement (Herbalife Ltd.)
Conditions of Effectiveness. This Third Amendment shall become not be effective as of until the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have precedent has been satisfied:
(a) The the Administrative Agent shall have has received a counterpart of this Amendment, duly Third Amendment executed and delivered by (A) the Borrower, (B) Holdingsthe MLP, (C) the Guarantorsother Loan Parties, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent., and Lenders (which may be by telecopy or other electronic transmission);
(b) The the Administrative Agent shall have has received a promissory note payable to each Lender that has previously requested a promissory note or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on the Committed Loan Notice with respect Sums Schedule to the Incremental Term B-2 Loans not later than 5:30 p.m. Credit Agreement (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.as amended hereby);
(c) The the Borrower has delivered to the Collateral Agent certificates evidencing all of the issued and outstanding shares of capital stock, if any, pledged pursuant to the Collateral Documents, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, and, with respect to uncertificated securities pledged pursuant to the Collateral Documents, including the pledged uncertificated securities of Xxxxxx Midstream NGL Holdings, LLC and Xxxxxx Midstream NGL Holdings II, LLC, confirmation and evidence satisfactory to the Administrative Agent shall have received, on behalf of itself, that the First Lien security interest in such uncertificated securities has been granted to and perfected by the Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the benefit of the Lenders in accordance with the U.C.C.;
(d) the Administrative Agent has received (i) a certificate of each Loan PartiesParty, dated as of the Third Amendment No. 3 Effective Date and addressed executed by an appropriate officer, which shall (a) certify the resolutions or other action authorizing the execution, delivery and performance of this Third Amendment and (b) certify that certain documents previously delivered to the Administrative AgentAgent are in full force and effect as of the Third Amendment Effective Date or contain appropriate attachments, including the First Lien Collateral Agent certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the Lenders, chief financial officer of the Borrower and MLP (in form and substance reasonably satisfactory to the Administrative Agent., Xxxxx Fargo Securities, LLC and RBC Capital Markets (Xxxxx Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to the Third Amendment, MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(de) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing has received opinions of (i) Xxxxx Xxxxx L.L.P., counsel to the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Loan Parties and (yii) local counsel in each jurisdiction requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(f) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a certificatecondition to MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(g) the Borrower and MLP have satisfied their obligations under that certain Engagement Letter dated as of June 18, 2014, as delivered by the Arrangers (the “Engagement Letter”), including without limitation, their obligations under Section 5 of the Engagement Letter with respect to assistance with syndication of the Facility Increase;
(h) MLP, the Borrower and each of the Guarantors have provided the documentation and other information to the Arrangers requested in writing at least three (3) Business Days before the Third Amendment No. 3 Effective DateDate that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the PATRIOT Act;
(i) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower, confirming satisfaction of Borrower certifying that (i) the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct in all material respects on and as of the such date hereof; provided that, to the extent that (unless such representations and warranties specifically refer to an earlier date, they in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided), further(ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, that(iii) since December 31, any representation and warranty 2013, there has been no event or circumstance that is qualified as has or could reasonably be expected to “have a Material Adverse Effect” , (iv) there is no litigation, investigation or similar language shall proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be true and correct in all respects on such respective dates.expected to have a Material Adverse Effect;
(gj) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
has paid (i) To fees to the Lenders and other fees and expenses due pursuant to the Engagement Letter and the Fee Letters (as defined in the Engagement Letter) and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(k) the Administrative Agent has received the results of Lien searches reasonably requested by the Arrangers Administrative Agent or the Arrangers;
(l) the Borrower has (i) delivered an amendment to each Mortgage excluding Buildings and Manufactured (Mobile) Homes from the “Collateral” described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in writing not less than five connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, and fees associated with the filing of the Mortgages or amendments to Mortgages (5) Business Days prior to the Amendment No. 3 Effective Date, including fees associated with title policies and/or endorsements thereto required by the Administrative Agent shall have receivedor the Arrangers), prior or arrangements satisfactory to the effectiveness Administrative Agent and the Arrangers for payment of this Amendmentsuch amounts;
(m) the Administrative Agent has received evidence of insurance (including flood insurance, all documentation if applicable) and other information flood certifications in form and substance reasonably satisfactory to the Administrative Agent with respect to each of the Loan Parties Mortgaged Properties; and
(n) the Administrative Agent has received such other documents as may be reasonably required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for or the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective DateArrangers.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of is subject to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedprecedent that:
(a) The the Administrative Agent shall have received counterparts of (i) this AmendmentAmendment duly executed by the Borrower, the Approving Lenders (which shall constitute the “Required Lenders” as defined in the Credit Agreement) and the Administrative Agent, (ii) a joinder to the Guaranty duly executed and delivered by EQM GP Corporation, together with the documentation contemplated for additional Guarantors in Section 6.10(a) of the Credit Agreement, (iii) an intercreditor agreement in form and substance reasonably acceptable to the Borrower and the Administrative Agent, duly executed and delivered by the representative of the secured parties under the Term Loan Agreement and the other parties thereto, (Aiv) fee letters among the Borrower, (B) HoldingsPNC Capital Markets, (C) the GuarantorsLLC and PNC Bank, (D) the Incremental Term B-2 Lender, (F) the Required Lenders in form and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect substance reasonably acceptable to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent Borrower and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, duly executed and delivered by the First Lien parties thereto, and (iv) such modifications, supplements and amendments to the Collateral Agent Documents as may be reasonably required by the Administrative Agent, in its sole discretion, to conform such Collateral Documents for any additional property upon which Liens are granted under, or other terms and provisions that are more restrictive under the comparable collateral documents securing Debt arising under the Term Loan Agreement;
b) the representations and warranties contained in Section 4 of this Amendment shall be true and correct in all respects as of the Effective Time;
c) contemporaneous with the Effective Time, the term loan described in and governed by the Term Loan Agreement shall be made to the Borrower and the Lenders, Initial Acquisition shall be consummated with the proceeds of such term loan;
d) the Term Loan Agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.; and
(de) The Administrative Agent the Borrower shall have received such (x) certificates of good standing (paid all fees and other amounts required to be paid by the Borrower on or prior to the Effective Time pursuant to the Credit Agreement and the Fee Letters to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due other amounts are invoiced to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced Borrower at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
three (f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (53) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActTime.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Except as expressly set forth in Section 1 above with respect to certain waivers which shall become effective as immediately upon execution of this Amendment, this Amendment shall not be effective unless and until all corporate actions of Borrower and the first date (such date being referred Significant Subsidiaries taken in connection herewith and the transactions contemplated hereby shall be satisfactory in form and substance to as the “Amendment No. 3 Effective Date”Administrative Agent and Lenders, which date is August 8, 2014) when and each of the following conditions precedent shall have been satisfied; provided that all such conditions precedent must be satisfied on or before July 2, 2002, or the agreements of the Administrative Agent and the Lenders herein shall terminate:
(a) The Administrative Agent shall have received All reasonable out-of-pocket fees and expenses in connection with the Loan Documents, including this Amendment, duly executed including legal and delivered other professional fees and expenses incurred on or prior to the date of this Amendment by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Administrative Agent or any Lender, (F) including, without limitation, the Required Lenders fees and (G) the Administrative Agentexpenses of Winstead Sechrest & Minick P.C. and Arthur Andersen L.L.P., xxxxx xxve been xaid.
(b) The Administrative Xxxxxxstrative Agent shall have received each of the following:
(i) a Committed Loan Notice with respect certificate of the Borrower, in form and substance satisfactory to Administrative Agent, Required Lenders and Administrative Agent's counsel, certifying (A) as to the Incremental Term B-2 Loans accuracy in all material respects, after giving effect to this Amendment, of the representations and warranties set forth in the Credit Agreement, this Amendment and the other Loan Documents, and (B) that there exists no Default or Event of Default, after giving effect to this Amendment, and the execution, delivery and performance of this Amendment will not later cause a Default or Event of Default;
(ii) payment of the Amendment Fee;
(iii) certified copies of resolutions of the boards of directors of the Domestic Borrower and each Significant Subsidiary authorizing the transactions contemplated by this Amendment;
(iv) documentation in form and substance satisfactory to the Lenders evidencing the TIDES Restructure, and evidence satisfactory to the Lenders that the equity conversion contemplated by such documents has been consummated;
(v) evidence satisfactory to the Lenders that the Domestic Borrower has raised no less than 5:30 p.m. $18,800,000 in gross proceeds in new equity from certain existing shareholders upon terms and conditions reasonably satisfactory to the Administrative Agent (New Yorkthe "Subject Equity Issuance");
(vi) prepayment of the Aggregate Revolving Loan in an amount equal to 100% of the proceeds (net of reasonable fees, New York timetaxes and other expenses of closing) on from the Business Day Subject Equity Issuance;
(vii) no event or circumstance shall have occurred or arisen as a result of a loss of a significant customer or revenue stream prior to the requested date of hereof which would have a Material Adverse Effect; and
(viii) such other documents, certificates and instruments as the Amendment No. 3 Effective DateAdministrative Agent shall require prior to the date hereof.
(c) The Administrative Agent shall have received, on behalf received payment of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agentits agency fee.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, Priority Advance Asset Coverage Report dated as of a date proximate to the Twelfth Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous together with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other supporting information with respect to the Loan Parties thereto as may be reasonably required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActAdministrative Agent.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment 4.1 The amendments set forth in Article I, the Commitment Increase, and the limited consent set forth in Article III shall become effective as of the first date hereof (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each only upon the satisfaction of all of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received (i) a counterpart signature page of this Amendment, Second Amendment duly executed and delivered by (A) the Borrower, (Bii) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) a counterpart signature page of this Second Amendment duly executed by such Lenders necessary to constitute the Required Lenders Lenders, and (Giii) the Administrative Agenta counterpart signature page of this Second Amendment duly executed by each Additional Commitment Lender.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date Copies of the Amendment No. 3 Effective Datearticles or certificate of incorporation and the bylaws of the Borrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in the Borrower’s jurisdiction of incorporation.
(c) The Administrative Agent shall have receivedreceived an incumbency certificate, on behalf executed by the Secretary or Assistant Secretary of itselfthe Borrower, which shall identify by name and title and bear the First Lien Collateral signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents, upon which certificate the Administrative Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for Lenders shall be entitled to rely until informed of any change in writing by the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative AgentBorrower.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to copies, certified by the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions Secretary or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer Assistant Secretary of the Borrower, confirming satisfaction of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing this Second Amendment and borrowings by the conditions set forth Borrower under the Credit Agreement in Sections 4(f) and (g)an aggregate amount up to $650,000,000.
(e) Payment A certificate, signed by the chief financial officer of the Borrower, stating that the conditions specified in subparagraphs (ii) and (iii) of Section 2.5.2 of the Credit Agreement have been satisfied.
(f) A written opinion of the Borrower’s counsel, addressed to the Additional Commitment Lenders substantially in the form delivered at the initial closing of the Credit Agreement.
(g) Any Notes requested by an Additional Commitment Lender pursuant to Section 2.11.4 of the Credit Agreement payable to the order of each such requesting Lender.
(h) Evidence satisfactory to the Administrative Agent of any required Governmental Approvals or consents regarding this Second Amendment.
(i) The Borrower shall have paid (i) to Xxxxx Fargo Securities and the Administrative Agent, for their own respective accounts, on the date hereof, the fees required to be paid under the Second Amendment Fee Letter, and (ii) all reasonable other fees and reasonable expenses due to of Xxxxx Fargo Securities, the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case Lenders required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days or prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued date hereof (including reasonable fees and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties expenses of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, counsel to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct Administrative Agent) in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesconnection with this Second Amendment.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 1 Effective Date”, which date is August 8March 26, 2014) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Additional Term B-2 Lender, (F) the Required Lenders B-1 Lender and (GE) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 1 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Second Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated as of the Amendment No. 3 1 Effective Date and addressed to the Administrative Agent, the First Second Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 1 Effective Date, signed by a Responsible Officer of the Borrower, confirming (i) satisfaction of the conditions set forth in Sections 4(f) and (g) and (ii) that the Term B-1 Loans meet the requirements and conditions to the Other Term Loans under Section 2.15 of the Credit Agreement and related definitions thereunder (including, without limitation, the definition of “Credit Agreement Refinancing Indebtedness”).
(e) Payment of (x) all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 1 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 1 Effective Date and (y) the Effectiveness Fee to the Lenders party to Amendment No. 1 on the Amendment No. 1 Effective Date, which shall be netted against Term B-1 Loans made by such Lenders. Substantially simultaneous with effectiveness, the Term Lenders holding (excluding the Additional Term B-2 Loans immediately before the Amendment No. 3 Effective Date B-1 Lender in its capacity as such) under the existing Credit Agreement shall have been paid (x) all accrued principal and unpaid interest on their Initial Term B-2 Loans to, but not including, the Amendment No. 3 1 Effective DateDate and (y) the prepayment premium pursuant to Section 2.05(a)(iv) of the Credit Agreement.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 1 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this First Amendment shall become effective as of (including the first date (such date being referred amendments contained in Section 1 hereof and agreements contained in Section 2 hereof) are subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfied:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) The Administrative Agent this First Amendment shall have received this Amendment, been duly executed and delivered by (A) the Borrower, (B) Holdingseach Guarantor, (C) the GuarantorsLenders, (D) the Incremental Term B-2 LenderLenders, the Facility Agent and the Security Trustee (F) which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Required Lenders and (G) the Administrative Facility Agent.;
(b) The Administrative the Facility Agent shall have received a Committed Loan Notice with Borrowing Request in respect to of the Incremental Term B-2 Loans not under this First Amendment by no later than 5:30 p.m. (New York, New York time) on the Business Day prior applicable time required pursuant to the requested date Section 2.3 of the Amendment No. 3 Effective Date.Credit Agreement (or such shorter period as may be agreed by the Facility Agent);
(c) The Administrative the Facility Agent shall have received (i) a certificate of an officer or an officer of the sole member, as the case may be, of each Security Party dated the First Amendment Effective Date, certifying
(A) either (i) that attached thereto is a true and complete copy of each Organizational Document of such Security Party, or (ii) that the copies of such Security Party’s Organizational Documents as previously certified and delivered to the Facility Agent on the Closing Date (or, if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the First Amendment Effective Date, without modification or amendment since such prior date of certification and delivery, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or sole member of such Security Party authorizing the execution, delivery and performance of this First Amendment and the other Loan Documents (including, if applicable, as amended by this First Amendment) to which such Security Party is a party and, in the case of the Borrower, the borrowing of the Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this First Amendment and any Loan Document or any other document delivered in connection herewith or therewith on behalf of such Security Party, (ii) a certificate as to the goodstanding of each Security Party as of a date reasonably near to the First Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of its jurisdiction of incorporation and (iii) an original or certified copy power of attorney under which any Loan Document is executed on behalf of a Security Party;
(d) the Facility Agent shall have received, on behalf of itselfitself and the other Finance Parties, a favorable written opinion of (i) Xxxxxx Xxxxxx & Xxxxxxxx LLP, counsel for the First Lien Collateral Facility Agent and the Lenders, an opinion from Ropes & other Finance Parties and (ii) Xxxx Xxxxx LLP, New York counsel for the Loan Security Parties, in each case (A) dated the First Amendment No. 3 Effective Date and (or such other date agreed by the Facility Agent), (B) addressed to the Administrative Agent, the First Lien Collateral Facility Agent and the Lendersother Finance Parties and (C) covering customary matters for incremental loan facilities relating to this First Amendment and the other Loan Documents delivered in connection with this First Amendment as the Facility Agent shall reasonably request;
(e) at least one Business Day (solely for purposes of this Section 4, in form and substance reasonably satisfactory to be defined as any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is closed) prior to the Administrative Agent.First Amendment Effective Date, each Security Party shall have provided to the Facility Agent the documentation and other information required by bank regulatory authorities under or in respect of applicable “know-your-customer” requirements, including the PATRIOT Act;
(df) The Administrative on or prior to the First Amendment Effective Date, the Borrower shall have paid to the Facility Agent for the account of each Incremental Lender with Incremental Commitments a fee equal to 1.25% of the aggregate amount of such Incremental Lender’s Commitments in effect on the First Amendment Effective Date;
(g) the Borrower shall have paid all other costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and in connection with this First Amendment;
(h) a copy of the memorandum of agreement (together with all amendments and addenda thereto) for the Additional Vessel duly executed by the Additional Guarantor who will be the owner thereof, and the relevant seller, together with evidence of any address or similar commission arrangements, all of which shall be of terms acceptable to the Facility Agent (certified by an officer of the Borrower or such Additional Guarantor to be a true, correct and complete copy thereof);
(i) two valuations dated respectively October 23, 2017 and October 25, 2017 (at the expense of the Borrower) by an Approved Broker indicating the Fair Market Value of each of the Delivered Vessels and the Remaining Vessels, and serving as an indicator (on the basis of the Fair Market Value of a Remaining Vessel) to determine the Fair Market Value of the Additional Vessel to be financed by the Incremental Commitments provided herein, as agreed between the Borrower and the Facility Agent;
(j) a duly executed original of (i) an amendment to the Membership Interest Pledge and (ii) an Account Pledge with respect to the Additional Guarantor who will be the owner of the Additional Vessel, and of any documents required to be delivered thereunder;
(k) upon the request of any Incremental Lender made through the Facility Agent, a promissory note executed and delivered to the order of such Incremental Lender in the form of Exhibit L attached to the Credit Agreement, or any other form approved by the Facility Agent;
(l) the conditions precedent set forth in Section 4.03 and Section 4.04 of the Credit Agreement in relation to the Additional Vessel and the Additional Guarantor who will be the owner thereof shall have been satisfied (or waived in writing by the Facility Agent with the consent of the Incremental Lenders);
(m) the Facility Agent shall have received in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this First Amendment, and evidence that such amendment has been duly recorded in accordance with the Laws of the Approved Flag;
(xn) certificates evidence that the Additional Guarantor who will be the owner of good standing (the Additional Vessel has duly opened an Operating Account and has delivered to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan PartyFacility Agent all resolutions, certificates of resolutions signature cards and other documents or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer evidence required in connection with this Amendment the opening, maintenance and (y) a certificate, dated as operation of such accounts with the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Account Bank;
(eo) Payment of all reasonable fees and expenses due to evidence that, if the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained tests set out in Article V VII or Section 5.04 of the Credit Agreement were applied immediately following the making of the relevant Borrowing, the Borrower would not be obliged to provide additional security or repay part of the Borrowings as therein provided (determined on the basis of the most recent valuation for each Vessel delivered pursuant to Section 5.03 of the Credit Agreement); and
(p) (i) all representations and any other Loan Document warranties set forth in Section 3 of this First Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date hereof; provided thatFirst Amendment Effective Date with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” (or similar language shall be true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such respective dates.
earlier date) and (gii) No no Default shall exist, have occurred and be continuing or would result from occur after giving effect to the effectiveness incurrence of the Loans pursuant to this First Amendment or from and the application of the proceeds thereoftherefrom.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment the obligations of the New Initial Revolving Lenders to make Initial Revolving Loans, the Swingline Lender to make Swingline Loans and the Issuing Banks to issue Letters of Credit, in each case under the Credit Agreement, and the amendments to the Original ABL Credit Agreement and the other Loan Documents (as defined in the Original ABL Credit Agreement) contained in Section 1(a) hereof shall become effective as of the first date (such date being referred to as the “Second Amendment No. 3 Effective Date”, ) on which date is August 8, 2014) when each of the following conditions shall have been satisfied:satisfied (or waived):
(a) The Administrative Agent (or its counsel) shall have received counterparts of (i) this Amendment, duly executed and delivered by (A) the Holdings, each Borrower, (B) Holdingseach Subsidiary Guarantor, (C) the Guarantorseach Released Party, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent, the New Initial Revolving Lenders, the Swingline Lender and each Issuing Bank, (ii) the Amended and Restated ABL Intercreditor Agreement executed by the Administrative Agent and the First Lien Agent, together with an acknowledgement thereto executed by each US Loan Party, (iii) each Intellectual Property Security Agreement required pursuant to the terms of the Credit Agreement or any other Loan Document, executed by each Loan Party party thereto and (iv) each Promissory Note from any Borrower requested by a Lender at least three (3) Business Days prior to the Second Amendment Effective Date, executed by each such Borrower.
(b) The Administrative Agent (or its counsel) shall have received a Committed customary legal opinion of (i) Ropes & Xxxx LLP, in its capacity as special counsel for the Loan Notice with respect Parties (ii) Xxxxxxxxxx Xxxxxxx LLP, as local New Jersey counsel for the Loan Parties organized under the laws of New Jersey, (iii) XxXxxxxx Xxxxxxxx LLP, as local Canadian and Ontario counsel for the Loan Parties organized under the laws of Canada or a province or territory thereof and (iv) Cuatrecasas, Xxxxxxxxx Xxxxxxx, S.L.P., as local Spanish counsel for the Spanish Borrower, in each case, dated the Second Amendment Effective Date, addressed to the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkAdministrative Agent, New York time) on the Business Day prior to Lenders and the requested date of the Amendment No. 3 Effective DateIssuing Banks.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(dor its counsel) The Administrative Agent shall have received such (x) with respect to each Loan Party, certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan PartyParty (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates and/or or other certificates of Responsible Officers of each Loan Party as certifying true and complete copies of the Administrative Agent may reasonably require Organizational Documents attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and Amendment.
(yd) The Administrative Agent shall have received a certificate, dated as certificate of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction Lead Borrower certifying as of the Second Amendment Effective Date that the conditions set forth in Sections 4(fclauses (f) and (g)) of this Section 5 have been satisfied.
(e) Payment The Administrative Agent (or its counsel) shall have received a certificate dated as of all reasonable fees and expenses due the Second Amendment Effective Date in substantially the form of Exhibit L to the Administrative Agent and Credit Agreement from the Arrangers chief financial officer (or other officer with reasonably equivalent responsibilities) of the Lead Borrower certifying as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Datematters set forth therein.
(f) The representations and warranties of the Borrower and each other Loan Party Borrowers contained in Article V III of the Credit Agreement and any other Loan Document Section 5 of this Amendment shall be true and correct in all material respects on and as of the date hereofSecond Amendment Effective Date; provided that, in the case of any representation and warranty which expressly relates to the extent that a specific date or period, such representations representation and warranties specifically refer to an earlier date, they warranty shall be true and correct in all material respects as of such earlier datethe respective dates or for the respective period, as the case may be; provided, further, that, if any representation and warranty that is qualified as by or subject to a “Material Adverse Effectmateriality”, “material adverse effect”, “material adverse change” or similar language term or qualification, such representation and warranty shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
. (g) No Default shall existunder Section 7.01(a), 7.01(f) or would result from the effectiveness of this Amendment or from the application 7.01(g) of the proceeds thereofOriginal ABL Credit Agreement or Event of Default under the Original ABL Credit Agreement shall exist immediately prior to giving effect to this Amendment, and no Event of Default under the Credit Agreement shall exist immediately after giving effect to this Amendment.
(h) The Lead Borrower shall have paid all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Arrangers (as defined in the engagement letter, dated as May 6, 2021 (the “Engagement Letter”), by and among the US Borrower, the Canadian Borrower, the Bank of America and BofA Securities, Inc. (“BofA Securities”)) (including, without limitation, the actual reasonable and documented out-of-pocket fees, disbursements and other charges of Xxxxx Xxxx & Xxxxxxxx LLP, Xxxxxx Xxxx Xxxxxxxxx Canada LLP and J&A Garrigues, S.L.P.) in connection with this Amendment and the transactions contemplated hereby invoiced at least three (3) Business Days (unless otherwise agreed by the Lead Borrower) prior to the Second Amendment Effective Date.
(i) The Lead Borrower shall have paid all fees required to be paid pursuant to the fee letter, dated as of May 6, 2021, by and among the US Borrower, the Canadian Borrower, Bank of America and BofA Securities.
(j) The Administrative Agent (or its counsel) shall have received a Note executed completed Perfection Certificate dated the Second Amendment Effective Date and signed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby.
(k) Subject to the terms of the ABL Intercreditor Agreement, the Administrative Agent (or the First Lien Agent (other than with respect to any of the following owned or held by the Canadian Borrower or Spanish Borrower), as its bailee and agent, or their respective counsels) shall have received the certificates representing the Capital Stock required to be pledged pursuant to the Collateral Documents (after giving effect to this Amendment), together with an undated stock or similar power for each Lender that requests such certificate executed in blank by a Note at least two Business Days duly authorized officer of the pledgor thereof, other than any such certificates and related documents and instruments delivered to and in the possession of the First Lien Agent prior to the Second Amendment No. 3 Effective Date.
(il) To the extent reasonably requested The Administrative Agent (or its counsel) shall have received each document and instrument (including any UCC or PPSA (or similar) financing statement) required by the Arrangers Credit Agreement or any Collateral Document or under law to be filed, registered or recorded in writing not less order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral Document, prior and superior in right of security to any other Person (subject to the terms of the ABL Intercreditor Agreement and other than five with respect to Permitted Liens), and each of the foregoing shall be in proper form for filing, registration or recordation, as applicable. (5m) The Administrative Agent shall have received at least two (2) Business Days prior to the Second Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, Date (i) all documentation and other information with respect to about Holdings, the Loan Parties Borrowers and the Subsidiary Guarantors required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, regulations (including without limitation the USA PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page has been reasonably requested in writing at least ten (10) Business Days prior to this the Second Amendment Effective Date and (ii) all documentation and other information about the Borrowers required by regulatory authorities under 31 C.F.R. § 1010.230 (the “ConsentBeneficial Ownership Regulation”) prior to 5:00 PM that has been reasonably requested in writing at least ten (New York City time10) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Days prior to the Second Amendment No. 3 Effective Date. For purposes of determining compliance with the conditions specified in this Section 5, the Lenders shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Lenders from and after the making by the Lenders of any Initial Revolving Loans in respect of the New Commitments pursuant to Section 2.07 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective and be deemed effective as of the first date hereof (such date being referred to as date, the “Amendment No. 3 1 Effective Date”), which date is August 8, 2014) when each subject to the satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The the Administrative Agent shall have received each of the following:
(i) the execution and delivery by counterparts of this Amendment, duly Amendment executed and delivered by (A) the Borrower, the Increasing Lenders and the New Lender (Bwhich Lenders constitute the Required Lenders);
(ii) Holdingscounterparts of the consent and reaffirmation agreement (the “Consent and Reaffirmation”), (C) substantially in the form of Exhibit E attached hereto, executed by the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.;
(biii) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers certificate of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 1 Effective Date, Date signed by a Responsible Officer of such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the increased Commitments contemplated hereby and (y) in the case of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) certifying that, before and (g).
(e) Payment of all reasonable fees and expenses due after giving effect to the Administrative Agent and increased Commitments contemplated hereby, (A) the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Amended Credit Agreement and any the other Loan Document shall be Documents are true and correct in all material respects on and as of the date hereof; provided thatAmendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty except that is qualified as to “Material Adverse Effect” or similar language the representations and warranties contained in subsections (a) and (b) of Section 5.04 of the Amended Credit Agreement shall be true deemed to refer to the most recent statements furnished pursuant to clauses (a) and correct in all respects on such respective dates.(b), respectively, of Section 6.01 of the Amended Credit Agreement and (B) no Default exists; and
(giv) No Default shall existupon the reasonable request of any Lender party hereto, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for in each Lender that requests such a Note case made at least two Business Days five (5) days prior to the Amendment No. 3 1 Effective Date., (x) any documentation and other information requested by such Lender so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, and (y) a Beneficial Ownership Certification in relation to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation;
(ib) To the Triumph Acquisition shall have been, or substantially concurrently with the effectiveness of this Amendment shall be, consummated in all material respects in accordance with the terms of the Triumph Acquisition Agreement; and
(c) the Borrower shall have paid all fees, costs and expenses due and payable on the Amendment No. 1 Effective Date to the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days invoiced prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 1 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Aar Corp)
Conditions of Effectiveness. This Fourth Amendment shall become not be effective as of until the first date (such date being referred to as date, the “Fourth Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have precedent has been satisfiedsatisfied in full:
(a) The receipt by the Administrative Agent shall have received of a counterpart of this Amendment, duly Fourth Amendment executed and delivered by each of the parties hereto (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.which may be by telecopy or electronic transmission);
(b) The delivery of certified copies of organizational documents, bylaws, authorizing resolutions of board of directors, and incumbency certificates for the Borrower and each Guarantor as the Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.may require;
(c) The such evidence as the Administrative Agent shall have receivedmay reasonably require to verify that the Borrower and each Guarantor is duly organized or formed, on behalf validly existing, and in good standing in the jurisdiction of itselfits organization;
(d) execution and delivery of new or replacement Notes as requested by any Lender;
(e) evidence satisfactory to the Administrative Agent and Xxxxx Fargo Securities LLC and RBC Capital Markets (collectively, the First Lien Collateral “Arrangers”) of receipt by the MLP of Net Cash Proceeds of at least $20,000,000 from an Equity Issuance (the “MLP Equity Issuance”);
(f) evidence satisfactory to the Administrative Agent and the LendersArrangers that either the Borrower or a Guarantor has acquired the naphthenic lube refinery and related assets located in Ouachita County, an opinion Arkansas (the “Cross Refinery”) from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, Xxxxxx Resource or its subsidiaries in accordance with acquisition documents in form and substance reasonably satisfactory to the Administrative Agent.Agent and the Arrangers for not more than $45,000,000 in stock or other equity interests (the “Cross Refinery Acquisition”);
(dg) The receipt by the Administrative Agent and the Arrangers of agreements between Xxxxxx Resource and either the Borrower or a Guarantor with respect to the Cross Refinery in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers, and amendments to the Loan Documents as shall have received be required to reflect such agreements;
(xh) certificates mortgage in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers covering the Cross Refinery, together with surveys, title reports, title policies and such other related documentation reasonably requested by the Administrative Agent or the Arrangers;
(i) evidence satisfactory to the Administrative Agent and the Arrangers of good standing (consent by required lenders under Xxxxxx Resource’s credit facility to the extent such concept existsrequired to effect the MLP Equity Issuance and Cross Refinery Acquisition;
(j) from amendments and supplements to, or amendments and restatements of, existing Mortgages (including the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party U.S. Vessel Mortgage) as reasonably required by the Administrative Agent may reasonably require evidencing or the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and Arrangers;
(yk) a certificate, dated as of the Amendment No. 3 Effective Date, certificate signed by a Responsible Officer of the Borrower, confirming satisfaction of Borrower certifying that (i) the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct in all material respects on and as of the such date hereof; provided that, to the extent that (unless such representations and warranties specifically refer to an earlier date, they in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided), further(ii) no Default or Event of Default has occurred and is continuing as of such date, that(iii) since December 31, 2008, there has occurred no material adverse change in the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) of the MLP General Partner, the MLP, the Borrower General Partner or the Borrower and its subsidiaries, taken as a whole, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to Section 6.03(c) of the Credit Agreement (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by Section 6.03(c) of the Credit Agreement shall be given concurrently with the delivery of the certificate given pursuant to this clause (k)), and (v) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any representation Guarantor, the MLP General Partner, or any of their respective properties that (A) could reasonably be expected to materially and warranty adversely affect the Borrower or any Guarantor, or (B) seeks to affect or pertains to any transaction contemplated hereby that is qualified as could reasonably be expected to “have a Material Adverse Effect” Effect or similar language shall be true and correct in all respects on such respective dates.that seeks to affect or pertains to the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(gl) No Default shall exist, or would result a certification from the effectiveness of this Amendment or from the application Borrower’s Chief Financial Officer that each of the proceeds thereof.MLP and the Borrower is Solvent as of the Fourth Amendment Effective Date;
(hm) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
payment of (i) To fees to the extent reasonably requested by Lenders party to this Fourth Amendment (other than the Lenders described in Section 12 hereof), (ii) other fees and expenses due pursuant to that certain Engagement Letter dated November 11, 2009, and (ii) Attorney Costs of the Arrangers and the Administrative Agent;
(n) opinions from (i) Xxxxx Xxxxx L.L.P., counsel to each Loan Party, substantially in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective form delivered on the Closing Date, with such changes as the Administrative Agent or the Arrangers shall reasonably request, and (ii) local counsel as the Administrative Agent or the Arrangers shall reasonably require with respect to each Mortgage or amendment thereto executed by a Loan Party;
(o) such Lien searches as the Administrative Agent or the Arrangers shall request;
(p) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages (or arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts shall have received, prior to the effectiveness been made);
(q) completion of this Amendment, all documentation and other information environmental due diligence with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” Cross Refinery Acquisition with results reasonably satisfactory to the Administrative Agent and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.Arrangers;
(jr) The the Outstanding Amount on the Fourth Amendment Effective Date shall be less than $305,000,000 (after payment of all required fees and expenses due and owing under clause (m) above);
(s) a Guaranty and Subsidiary Security Agreement executed by Prism Liquids, together with such opinions of counsel as Administrative Agent shall have received for reasonably request; and
(t) other documents as may be reasonably required by the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (Administrative Agent or the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective DateArrangers.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as when, and only when, the Agent shall have received counterparts of this Amendment executed by the Borrowers and all of the first date (such date being referred to as Banks, except that Section 1 hereof shall become effective when, and only when, the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each Agent shall have additionally received all of the following conditions documents, each document (unless otherwise indicated) being dated the date of receipt thereof by the Agent (which date shall have been satisfiedbe the same for all such documents), in form and substance satisfactory to the Banks:
(a) The Administrative Agent shall have received Certified copies of (i) the resolutions of the Board of Directors or Executive Committee of each Borrower approving this Amendment and the matters contemplated hereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and the matters contemplated hereby, (iii) all waivers and amendments with respect to the Junior Debt concerning the matters covered by this Amendment, duly executed and delivered by (A) which shall include an amendment to the BorrowerJunior Debt documents extending the maturity date thereof to April 15, (B) Holdings1998, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (Giv) an executed copy of Amendment No. 4 to Receivables Purchase and Servicing Agreement extending the Administrative Agentmaturity date of the Purchase Agreement to March 31, 1998 and in form and substance satisfactory to the Banks.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date A certificate of the Secretary or an Assistant Secretary of each Borrower certifying the names and true signatures of the officers of such Borrower authorized to sign this Amendment No. 3 Effective Dateand the other documents to be delivered hereunder.
(c) The Administrative Agent shall have receivedA favorable opinion of Brobxxx, on behalf of itselfXxlexxx & Xarrxxxx XXX, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan PartiesBorrowers, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agenteffect that this Amendment and each and every other document delivered by any of the Borrowers have been duly authorized, executed and delivered by such Borrowers, and constitute the First Lien Collateral legal, valid and binding obligations of such Borrowers, enforceable against such Borrowers in accordance with their respective terms, and to such other matters as the Agent and the Lenders, in form and substance may reasonably satisfactory to the Administrative Agentrequire.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, A certificate signed by a Responsible Officer duly authorized officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).each Borrower stating that:
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(fi) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and Section 3 hereof are correct in all material respects on and as of the date hereof; provided that, to the extent that of such representations certificate as though made on and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, furtherand
(ii) After giving effect to the terms of the Amendment, thatno event has occurred and is continuing which constitutes a Default or an Event of Default.
(e) Results of a recent field examination by the Banks of the Borrowers' assets, any representation liabilities, books and warranty records that is qualified as are satisfactory to “Material Adverse Effect” or similar language shall be true and correct the Banks in all respects their sole discretion.
(f) A 1998 Business Plan (forecasted on such respective datesa monthly basis).
(g) No Default shall exist, or would result from Payment of a $40,000 extension fee to the effectiveness of this Amendment or from Agent for the application ratable benefit of the proceeds thereof.
(h) The Administrative Agent (or its counsel) Banks, which shall have received a Note executed be fully earned by the Borrower for each Lender that requests such a Note at least two Business Days prior to Banks on the Amendment No. 3 Effective Datedate so paid.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Us Homecare Corp)
Conditions of Effectiveness. This Amendment shall become effective in the order and in the manner herein described, as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, upon which date is August 8, 2014) when each of the following conditions precedent set forth below in this Section 4 shall have been satisfied:be satisfied or waived in accordance with Section 9.08 of the Una-mended Credit Agreement (such date, the "Amendment Effective Date"):
(a) The Administrative Agent Term Loan Amendment shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agentbecome effective in accordance with its terms.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received from Holdings, the Company, the other Borrowers and each Subsidiary Loan Party, the Administrative Agent, and the Lenders party hereto either (i) a Note executed counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(c) The Loan Parties shall have delivered a certificate to the Administrative Agent representing and warranting that: (a) the execution, delivery and performance by Holdings, the Company and each of the Subsidiary Loan Parties of this Amendment are permitted under, and do not conflict with or violate, the terms of the Unamended Credit Agreement, the Existing Term Loan Credit Agreement, the Intercreditor Agreement or the Senior Lender Intercreditor Agreement, (b) both before and after giving effect to this Amendment, no default exists under the Unamended Credit Agreement, the Credit Agreement, the Existing Term Loan Credit Agreement, the Term Loan Credit Agreement, or any indenture or supplemental indenture governing the senior notes issued by the Borrower for each Company and outstanding on the Amendment Effective Date, and (c) no action, consent or approval of, registration or filing with, or any other action by any Governmental Authority is or will be required in connection with this Amendment.
(d) The Agents shall have received all fees payable thereto or to any Lender that requests such a Note on or prior to the Amendment Effective Date and, to the extent invoiced at least two 2 Business Days prior to the Amendment No. 3 Effective Date.
(i) To , all other amounts due and payable pursuant to the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days Loan Documents on or prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have receivedincluding, prior to the effectiveness extent invoiced, reimbursement or payment of this Amendmentall reasonable out-of-pocket expenses (including reasonable fees, all documentation charges and other information with respect disbursements of Xxxxxx Xxxxxx & Xxxx-del LLP and local counsel) required to be reimbursed or paid by the Loan Parties required by regulatory authorities hereunder or under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actany Loan Document.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Global Group Inc)
Conditions of Effectiveness. This The effectiveness of this Third Amendment shall become effective as of Agreement is subject to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfiedconditions:
(a) The Administrative Agent the Required Holders under each of the of Outstanding Agreements shall have received consented to this Amendment, duly executed and delivered Third Amendment Agreement as evidenced by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.their execution thereof;
(b) The Administrative Agent the requisite percentage of lenders under the Credit Agreement (the "Lenders") shall have received agreed to all amendments necessary to effect the Proposed Reorganization and a Committed Loan Notice with respect copy thereof shall have been provided to the Incremental Term B-2 Loans not later holders of the Outstanding Notes. In the event the Company agrees that the Lenders or holders of any of the Outstanding Notes shall be granted any additional or more restrictive financial or negative covenants or events of default than 5:30 p.m. (New York, New York time) are imposed on the Business Day prior to Company under the requested date Outstanding Agreements, as amended hereby, the Company agrees that the holders of the Amendment No. 3 Effective Date.all other Outstanding Notes shall also be granted such more restrictive covenants or events of defaults;
(c) The Administrative Agent shall have received, on behalf each of itself, the First Lien Collateral Agent and holders of the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent Outstanding Notes shall have received such (x) certificates of good standing (to the extent such concept exists) an amendment fee from the applicable secretary of state Company in an amount equal to .10% of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as aggregate principal amount of the Outstanding Notes held by such holder (the "Amendment No. 3 Effective Date, signed by Fee") and a Responsible Officer of the Borrower, confirming satisfaction Company shall have certified to each such holder (the truth and accuracy of which certification shall constitute a Condition of Effectiveness) that the Lenders have received no amendment fees or other consideration (including increase in coupon) greater than the Amendment Fee;
(d) the Holders of the conditions set forth Outstanding Notes shall have received evidence that (i) the Master Partnership shall have transferred to the Company an equity contribution in Sections 4(f) the amount of at least $45,000,000 (the "Equity Contribution"), and (g).ii) the entire amount of such Equity Contribution shall have been applied to the payment of outstanding Indebtedness of the Company;
(e) Payment of all reasonable fees and expenses due counsel to the Administrative Agent and holders of the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement Outstanding Notes shall have been paid all accrued fees and unpaid interest on their Term B-2 Loans to, but not including, the expenses incurred in connection with this Third Amendment No. 3 Effective Date.Agreement;
(f) The representations and warranties materials reasonably satisfactory to the holders of the Borrower and each other Loan Party contained in Article V of Outstanding Notes shall have been delivered evidencing that the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereofProposed Reorganization has become effective; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.and
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application each of the proceeds thereof.
(h) The Administrative Agent (or its counsel) Designated Current Managers shall have received entered into an employment agreement to act as an executive manager of the General Partner for a Note executed by the Borrower for each Lender that requests such a Note period of at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendmentthree years, all documentation and other information with respect to as contemplated in the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActProposed Reorganization.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Note Purchase Agreement (Heritage Propane Partners L P)
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as be subject to the satisfaction of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfied:precedent (such date of effectiveness, the “Effective Date”):
(a) The the Administrative Agent shall have received this Amendmentthe following, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, each in form and substance reasonably satisfactory to the Administrative Agent.:
(di) The Administrative Agent shall have received such (x) certificates counterparts of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of this Amendment executed by each Borrower, each other Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing and each Incremental Term-1 Lender; 83158564_2
(ii) a promissory note executed by the identity, authority and capacity Company in favor of each Responsible Officer thereof authorized to act as Incremental Term-1 Lender that has requested a Responsible Officer promissory note at least two (2) Business Days in connection with this Amendment and advance of the Effective Date;
(yiii) a certificate, dated as certificate of the Amendment No. 3 Effective DateCompany and each Subsidiary Guarantor that is a Domestic Subsidiary certifying that attached thereto is a true, signed correct and complete copy of resolutions duly adopted by the board of directors (or other governing body) of such Person authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment;
(iv) a certificate executed by a Responsible Financial Officer of the Borrower, confirming satisfaction of Company that the conditions set forth in Sections 4(fparagraphs (a) and (g).b) of Section 4.02 of the Credit Agreement have been satisfied on such date; and
(ev) Payment a Borrowing Request for the Incremental Term-1 Loan meeting the requirements of all reasonable fees and expenses due to Section 2.03 of the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.Agreement;
(fb) The the representations and warranties of the Borrower and each other Loan Party Parties contained in Article V of the Credit Agreement and any other Loan Document Section 5 shall be true and correct correct;
(c) all fees set forth in the letter agreement with Xxxxx Fargo Securities, LLC dated as of October 12, 2016, shall have been paid by the Company; and
(d) all material respects on reasonable out-of-pocket costs and expenses incurred by the Administrative Agent as of the date hereof; provided thathereof in connection with the preparation, to the extent that such representations negotiation, execution and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness delivery of this Amendment or from and the application other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees, charges and disbursements of legal counsel for the proceeds thereof.
(h) The Administrative Agent (or its counselin connection with the preparation, negotiation, execution and delivery of this Amendment) shall have received a Note executed been paid by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective DateCompany.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement and Incremental Term Loan Agreement (John Bean Technologies CORP)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (such date being referred to as the “Amendment No. 3 Effective Date”above written when, which date is August 8and only when, 2014) when each of the following conditions shall have been satisfied:
(a) The Administrative the Agent shall have received counterparts of this Amendment executed by the Company, the Majority Lenders, and/or, as to any such Majority Lender and Extending Lender, advice satisfactory to the Agent that such Lender has executed this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.;
(b) The Administrative the Agent shall have received a Committed Loan Notice with respect certificate of the Secretary or Assistant Secretary of the Borrowers, in form and substance satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. Agent, which certificate shall (New York, New York timei) on the Business Day prior certify as to the requested incumbency and signature of the officers of the Borrowers executing this Amendment (with the President, a Vice President, the Secretary or Assistant Secretary of the Company attesting to the incumbency and signature of the Secretary or Assistant Secretary providing such certificate), (ii) have attached to it a true and correct copy of the resolutions of the Board of Directors of each Borrower, which resolutions shall authorize the execution, delivery and performance of this Amendment, and (iii) certify that, as of the date of such certificate (which shall not be earlier than the Amendment No. 3 Effective Date.date hereof), none of such resolutions shall have been amended, supplemented, modified, revoked or rescinded;
(c) The Administrative each Guarantor has executed and delivered a consent in the form of Annex A hereto;
(d) Capmark Affordable Equity Holdings Inc., Summit Crest Ventures, LLC and Capmark REO Holding LLC have executed and delivered a Guaranty Supplement;
(e) the Agent shall have received, on behalf of itselfreceived satisfactory evidence that the Transactions, the First Lien Collateral Agent Term Loan Agreement and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for amendments to the Loan Parties, dated Bridge Facility (the “Amendment No. 3 Effective Date 9 and addressed Waiver to the Administrative AgentBridge Facility”) have become effective in accordance with their respective terms and, the First Lien Collateral Agent and the Lendersin each case, are in form and substance reasonably satisfactory to the Administrative Agent.Lenders;
(df) The Administrative the Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received an amendment fee for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that has executed and delivered an executed a signature page to this Amendment (each, a “Consenting Lender” and, collectively, the “ConsentConsenting Lenders”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s the aggregate principal amount of Term B-2 Loans, Revolving Credit such Consenting Lender’s Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the consummation of the Transactions and (ii) an additional fee equal to each Consenting Lender’s pro rata share of $8,400,000, which pro rata share shall be equal to a fraction the numerator of which shall be the aggregate of such Consenting Lender’s outstanding Loans under the Credit Agreement immediately prior to the consummation of the Transactions and outstanding loans under the Bridge Facility immediately prior to the consummation of the Transactions and the denominator of which shall be the aggregate of the outstanding Loans under the Credit Agreement of all Consenting Lenders immediately prior to the consummation of the Transactions and the outstanding loans of all lenders under the Bridge Facility immediately prior to the consummation of the Transactions that enter into Amendment No. 3 Effective Date9 and Waiver to the Bridge Facility; and
(g) all other fees and expenses of the Agent and the Lenders (including (i) all reasonable fees and expenses of counsel to the Agent and (ii) all retainers for counsel to the Agent and advisor to the Agent), to the extent invoiced prior to the date hereof, shall have been paid.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Second Amendment shall become effective as of (including the first date (such date being referred amendments contained in Section 1 hereof and agreements contained in Section 2 hereof) are subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfied:(the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) The Administrative Agent this Second Amendment shall have received this Amendment, been duly executed and delivered by (A) the Borrower, (B) Holdingseach Guarantor, (C) the GuarantorsLenders, (D) the Incremental Term B-2 LenderLenders, the Facility Agent and the Security Trustee (F) which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Required Lenders and (G) the Administrative Facility Agent.;
(b) The Administrative a duly executed original of a Guarantor Accession Agreement made between the Additional Guarantor and the Facility Agent;
(c) the Facility Agent shall have received a Committed Loan Notice with Borrowing Request in respect of the Loans under this Second Amendment by no later than the applicable time required pursuant to Section 2.3 of the Credit Agreement (or such shorter period as may be agreed by the Facility Agent);
(d) the Facility Agent shall have received (i) a certificate of an officer or an officer of the sole member, as the case may be, of each Security Party dated the Second Amendment Effective Date, certifying (A) either (i) that attached thereto is a true and complete copy of each Organizational Document of such Security Party, or (ii) that the copies of such Security Party’s Organizational Documents as previously certified and delivered to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) Facility Agent on the Business Day Closing Date (or, if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the Second Amendment Effective Date, without modification or amendment since such prior date of certification and delivery, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or sole member of such Security Party authorizing the execution, delivery and performance of this Second Amendment and the other Loan Documents (including, if applicable, as amended by this Second Amendment) to which such Security Party is a party and, in the case of the Borrower, the borrowing of the Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the requested incumbency and specimen signature of each officer executing this Second Amendment and any Loan Document or any other document delivered in connection herewith or therewith on behalf of such Security Party, (ii) a certificate as to the goodstanding of each Security Party as of a date reasonably near to the Second Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of the Amendment No. 3 Effective Date.its jurisdiction of incorporation and (iii) an original or certified copy power of attorney under which any Loan Document is executed on behalf of a Security Party;
(ce) The Administrative the Facility Agent shall have received, on behalf of itselfitself and the other Finance Parties, a favorable written opinion of (i) Xxxxxx Xxxxxx & Xxxxxxxx LLP, counsel for the First Lien Collateral Facility Agent and the Lendersother Finance Parties, an opinion from Ropes & (ii) Xxxx Xxxxx LLP, New York counsel for the Loan Security Parties, and (iii) any other legal advisors on matters of the law of such jurisdiction as the Facility Agent may require, in each case (A) dated the Second Amendment No. 3 Effective Date and (or such other date agreed by the Facility Agent), (B) addressed to the Administrative Agent, the First Lien Collateral Facility Agent and the Lendersother Finance Parties and (C) covering customary matters for incremental loan facilities relating to this Second Amendment and the other Loan Documents delivered in connection with this Second Amendment as the Facility Agent shall reasonably request;
(f) at least one Business Day (solely for purposes of this Section 4, in form and substance reasonably satisfactory to be defined as any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is closed) prior to the Administrative Agent.Second Amendment Effective Date, each Security Party shall have provided to the Facility Agent the documentation and other information required by bank regulatory authorities under or in respect of applicable “know-your-customer” requirements, including the PATRIOT Act;
(dg) The Administrative on or prior to the Second Amendment Effective Date, the Borrower shall have paid to the Facility Agent for the account of each Incremental Lender with Incremental Commitments a fee equal to 1.25% of the aggregate amount of such Incremental Lender’s Commitments in effect on the Second Amendment Effective Date;
(h) the Borrower shall have paid all other costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and in connection with this Second Amendment;
(i) a copy of the memorandum of agreement (together with all amendments and addenda thereto) for the Additional Vessel duly executed by the Additional Guarantor who will be the owner thereof, and the relevant seller, together with evidence of any address or similar commission arrangements, all of which shall be of terms acceptable to the Facility Agent (certified by an officer of the Borrower or such Additional Guarantor to be a true, correct and complete copy thereof);
(j) two valuations dated respectively September 30, 2018 and October 8, 2018, addressed to the Borrower or the Facility Agent (at the expense of the Borrower) by an Approved Broker indicating the Fair Market Value of the Additional Vessel;
(k) a duly executed original of (i) an amendment to the Membership Interest Pledge and (ii) an Account Pledge with respect to the Additional Guarantor who will be the owner of the Additional Vessel, and of any documents required to be delivered thereunder;
(l) upon the request of any Incremental Lender made through the Facility Agent, a promissory note executed and delivered to the order of such Incremental Lender in the form of Exhibit L attached to the Credit Agreement, or any other form approved by the Facility Agent;
(m) the conditions precedent set forth in Section 4.03 and Section 4.04 of the Credit Agreement in relation to the Additional Vessel and the Additional Guarantor who will be the owner thereof shall have been satisfied (or waived in writing by the Facility Agent with the consent of the Incremental Lenders);
(n) the Facility Agent shall have received in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this Second Amendment, and evidence that such amendment has been duly recorded in accordance with the Laws of the Approved Flag;
(xo) certificates evidence that the Additional Guarantor who will be the owner of good standing (the Additional Vessel has duly opened an Operating Account and has delivered to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan PartyFacility Agent all resolutions, certificates of resolutions signature cards and other documents or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer evidence required in connection with this Amendment the opening, maintenance and (y) a certificate, dated as operation of such accounts with the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Account Bank;
(ep) Payment of all reasonable fees and expenses due to evidence that, if the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained tests set out in Article V VII or Section 5.04 of the Credit Agreement were applied immediately following the making of the relevant Borrowing, the Borrower would not be obliged to provide additional security or repay part of the Borrowings as therein provided (determined on the basis of the most recent valuation for each Vessel delivered pursuant to Section 5.03 of the Credit Agreement); and
(q) (i) all representations and any other Loan Document warranties set forth in Section 3 of this Second Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date hereof; provided thatSecond Amendment Effective Date with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” (or similar language shall be true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such respective dates.
earlier date) and (gii) No no Default shall exist, have occurred and be continuing or would result from occur after giving effect to the effectiveness incurrence of the Loans pursuant to this Second Amendment or from and the application of the proceeds thereoftherefrom.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Second Amendment shall become effective as of the first date (such date being referred to as the “Second Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedwhen:
(a) The the Administrative Agent shall have received (i) counterparts of this AmendmentSecond Amendment executed by each of the Borrowers, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and, acknowledged by the Administrative Agent and (Gii) the Administrative Agent.Second Amendment Documents executed by the parties thereto;
(b) The the Company shall have paid the Second Amendment Fees;
(c) the Administrative Agent shall have received a Committed Loan Notice with respect Secretary’s Certificate for each of the Borrowers: (i) attesting as to the Incremental Term B-2 Loans not later than 5:30 p.m. incumbency of authorized officers; (New Yorkii) certifying that there have been no changes in the certificate of incorporation or bylaws of the Borrowers, New York time) on since the Business Day prior to the requested date of the Secretary’s Certificate delivered in connection with the execution and delivery of the Credit Agreement; and (ii) attaching true and correct copies of (A) evidence of authorization of the Borrowers’ execution and full performance of this Second Amendment, the other Second Amendment No. 3 Effective Date.Documents and all other documents and actions required hereunder; and (B) good standing certificates from the jurisdictions of incorporation of each of the Borrowers (or in the case of any Dutch Borrower, an extract from the commercial register showing the existence of such Dutch Borrower) certifying to the due organization and good standing of each of the Borrowers;
(cd) The the Administrative Agent shall have received, on behalf received a favorable opinion of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes Drinker Xxxxxx & Xxxx Xxxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agentdomestic Borrowers, and Xxxxx & XxXxxxxx, counsel to the First Lien Collateral Agent and the Lenders, Foreign Obligors in form and substance reasonably satisfactory acceptable to Administrative Agent and its counsel and addressed to Administrative Agent and each Lender;
(e) the Company shall have paid all reasonable out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of counsel to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (invoiced to the extent such concept existsCompany in reasonable detail) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Second Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, time the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.condition in clause (a) above is satisfied; and
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No no Default shall existhave occurred and be continuing, or would occur as a result from the effectiveness of this Amendment or from the application of the proceeds thereoftransactions contemplated by this Second Amendment.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as is subject to the satisfaction or waiver of the first following conditions precedent (the date (of such date satisfaction or waiver being referred to as the “Amendment No. 3 1 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfied:):
(a) The the Administrative Agent shall have received copies of counterparts of this Amendment, Amendment duly executed and delivered by (A) the Borrower, (B) Holdingsthe Parent Guarantor, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.Agent and each of the Lenders;
(b) The the Administrative Agent shall have received (i) a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date favorable opinion of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes Lxxxxx & Xxxx Wxxxxxx LLP, New York counsel for to the Loan PartiesBorrower and the Parent Guarantor and (ii) a favorable opinion of Bxxxxxx Xxxxx LLP, dated Maryland counsel to the Amendment No. 3 Effective Date Borrower and the Parent Guarantor, each addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.;
(dc) The the Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents;
(yd) the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, or other comparable organizational instrument of the Parent Guarantor and the Borrower to be filed with the State Department of Assessments and Taxation of Maryland;
(e) the Administrative Agent shall have received copies certified by a Responsible Officer of each such Person of (i) the by-laws or operating agreement (or the equivalent governing documents) of the Parent Guarantor and the Borrower and (ii) all necessary resolutions or other action taken by the board of directors of the Parent Guarantor to authorize the execution, delivery and performance of this Amendment by the Parent Guarantor and the Borrower;
(f) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and the Parent Guarantor is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(g) the Administrative Agent shall have received a certificate, dated duly executed by a Responsible Officer, certifying that (i) the Merger and the Conversion has occurred or shall occur substantially simultaneously with the effectiveness of this Amendment and attaching a fully executed copy of the Merger Agreement; (ii) the Parent Guarantor and the Borrower have received all approvals, consents and waivers, and have made or given all necessary filings and notices as shall be required to consummate the Reorganization, the Merger, the Conversion and the other transactions contemplated hereby, which do not and will not as of the Amendment No. 3 1 Effective Date after giving effect to the consummation of the Merger and the Conversion (a) contravene the terms of any of such Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Loan Party is party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject; or (c) violate any Law; except in each case referred to in subclause (b) or (c), to the extent such conflict, breach, contravention or violation, or creation of any such Lien or required payment, could not reasonably be expected to have a Material Adverse Effect; and (iii) as of the Amendment No. 1 Effective Date, signed by immediately following the Reorganization, the Merger, the Conversion and the other transactions contemplated hereby, the Borrower shall be a Responsible Officer Wholly-Owned Subsidiary of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Parent Guarantor;
(eh) Payment of all reasonable fees the Borrower and expenses due the Parent Guarantor shall have provided to the Administrative Agent and the Arrangers (as agreed to applicable Lender the documentation and other information reasonably requested in writing between by the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced or such Lender at least two ten Business Days prior to the Amendment No. 3 1 Effective Date. Substantially simultaneous Date that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures in connection with effectivenessapplicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans toPatriot Act, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and in each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note case at least two five Business Days prior to the Amendment No. 3 1 Effective Date.;
(i) To to the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Person shall have delivered to the Administrative Agent, and any Lender reasonably requested by the Arrangers requesting, in writing not less than five at least ten (510) Business Days prior to the Amendment No. 3 1 Effective Date, the Administrative Agent shall have receivedsame, prior a Beneficial Ownership Certification in relation to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECCBorrower, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately each case at least five Business Days prior to the Amendment No. 3 1 Effective Date; and
(j) the Administrative Agent shall have received payment of all fees and expenses (including fees and expenses of counsel for the Administrative Agent) due and payable in connection with this Amendment; provided that invoices for such fees and expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Amendment No. 1 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of when, and only when, (a) the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each Noteholder shall have received all of the following conditions shall have been satisfied:
documents, each (aunless otherwise indicated) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, being dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersdate hereof, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.Noteholder:
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness executed originals of each of this Amendment, the Notes, the initial Facility Guaranties, the initial Security Documents and the other Related Documents, together with all documentation schedules and other information exhibits thereto;
(ii) the favorable written opinions with respect to the Loan Related Documents and the transactions contemplated thereby of special counsel to the Credit Parties (including special indenture counsel) in the jurisdictions of North Carolina, South Carolina, New York and Mexico, dated the Effective Date, addressed to the Noteholder and satisfactory to its counsel;
(iii) resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of each Credit Party certified by its secretary or assistant secretary as of the Effective Date, approving and adopting the Related Documents to be executed by such Credit Party, and authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Related Documents on behalf of each of the Credit Parties, certified by the secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the Credit Parties certified as of a recent date by the Secretary of State of its state of organization;
(vi) Operating Documents of each of the Credit Parties certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of each of the Credit Parties as to the due existence and good standing of such Credit Party;
(viii) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of each of the Credit Parties as of a recent date by the Secretary of State or comparable official of each jurisdiction in which the failure to be qualified to do business or authorized so to conduct business could have a Material Adverse Effect;
(ix) a Compliance Certificate as of the end of the fiscal quarter most recently ended prior to the Effective Date;
(x) evidence of the filing of Uniform Commercial Code financing statements reflecting the filing in all places required by regulatory authorities applicable law to perfect the General Liens of the General Collateral Agent under the General Security Instruments and the Priority Liens of the Priority Collateral Agent under the Priority Security Instruments, as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be necessary under applicable “know-your-customer” law to perfect the General Liens of the General Collateral Agent under the General Security Instruments and anti-money laundering rules and regulationsthe Priority Liens of the Priority Collateral Agent under the Priority Security Instruments, as the General Collateral Agent or Priority Collateral Agent may require, including without limitation the PATRIOT Act.delivery by the Company of all certificates evidencing Pledged Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(jxi) The Administrative Agent shall have received for executed originals of the account Collateral Agency Agreements and the Senior Debt Intercreditor Agreement;
(xii) executed originals of the Securitization Intercreditor Agreement and the Leased Facility Intercreditor Agreement;
(xiii) copies of the Senior Indenture, the Credit Agreement, the Xxxxxx Swap Agreement, the Receivables Transfer Agreement, the Receivables Purchase Agreement and the Senior Lease Documents, together with all material agreements executed in connection therewith, and amendments of each Lender (other than GECCof the foregoing, each in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior form and substance acceptable to the Amendment No. 3 Effective Date.Noteholder, certified as true and correct and in full force and effect by an authorized officer of the Company;
(xiv) Uniform Commercial Code search results as of a recent date showing only those Liens as are acceptable to the Noteholder;
(xv) delivery of Material Real Property Support Documents as may be required by any governmental authority in connection with the delivery of any Mortgage;
Appears in 1 contract
Samples: Note Agreement (Cone Mills Corp)
Conditions of Effectiveness. This Amendment 2.1 The amendments set forth in ARTICLE I shall become effective as of the first date (such date being referred to as the “First Amendment No. 3 Effective Date”) when, which date is August 8and only when, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received each of the following, each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) An executed counterpart of this Amendment, duly executed Amendment from each of the Borrower and delivered by each of the Lenders.
(Aii) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(Biii) HoldingsCopies, certified by the Secretary or Assistant Secretary of the Borrower, of its bylaws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents.
(Civ) An incumbency certificate, executed by the GuarantorsSecretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(Dv) A certificate, signed by an Authorized Officer, stating that on the Incremental Term B-2 LenderFirst Amendment Effective Date the representations and warranties of the Borrower contained in Article III of this Amendment shall be true and correct on and as of the First Amendment Effective Date.
(vi) A written opinion of the Borrower’s counsel, (F) the Required Lenders and (G) addressed to the Administrative Agent, the Lenders and the LC Issuers, dated as of the First Amendment Effective Date, in form and substance satisfactory to the Administrative Agent.
(vii) Any Notes requested by a Lender pursuant to Section 2.12 of the Credit Agreement payable to the order of each such requesting Lender.
(viii) Such other documents as any Lender or its counsel may have reasonably requested.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to and the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent Lenders shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the First Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to requested by the Loan Parties Administrative Agent or any Lender or required by regulatory authorities under in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act and any applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(jc) The Administrative Agent Unless the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations, the Borrower shall have received for delivered to the account of each Administrative Agent, and directly to any Lender (other than GECCrequesting the same, a Beneficial Ownership Certification in relation to it, in its capacity as Incremental Term B-2 Lendereach case at least five (5) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Days prior to the First Amendment No. 3 Effective Date.
(d) The Borrower shall have paid to (i) Xxxxx Fargo Securities, LLC, the Administrative Agent and the Lenders any fees required under the Xxxxx Fargo Fee Letter (as defined below) to be paid to each of them, in the amounts due and payable on the First Amendment Effective Date as required by the terms thereof, and (ii) JPMorgan Chase Bank,
Appears in 1 contract
Samples: Credit Agreement
Conditions of Effectiveness. This Amendment shall become effective as when, and only when, the Administrative Agent shall have received counterparts of this Amendment duly executed by the first date (such date being referred to as Borrower, the “Amendment No. 3 Effective Date”Co-Agents and the Banks, which date is August 8, 2014) when each and all of the following conditions shall have been satisfieddocuments in form and substance satisfactory to the Administrative Agent and the Banks:
(a) The Administrative Agent shall have received A certificate executed by a duly authorized officer of the Borrower certifying that (i) the statements contained in Section 7.1(j) of the Credit Agreement, as amended by this Amendment, duly are true and accurate in all material respects and (ii) all material documentation evidencing the IBH Acquisition Debt and the assumption of the IBH Existing Commitments Debt have been executed by the parties thereto and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) to the Administrative Agent, including, but not limited to, complete execution copies of the Stock Purchase Agreement, the Amendment to the Existing Note Purchase Agreement, the Note Purchase Agreement and the Subordinated Note Purchase Agreement, together with all exhibits and schedules thereto, (iii) copies of all of the material agreements listed on Schedule I relating to the IBH Existing Commitments Debt have been delivered to the Administrative Agent, and (iv) executed copies of any opinions of counsel of the Borrower and its Subsidiaries related to the Infratest Acquisition, and the IBH Acquisition Debt have been delivered to the Administrative Agent (including the opinion letters delivered pursuant to Section 4.4 of each of the Note Purchase Agreement and the Subordinated Note Purchase Agreement.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. All executed (New Yorkas applicable) documents, New York timeschedules and items described in Sections 3(a) on the Business Day prior to the requested date (ii), (iii) and (iv) of the Amendment No. 3 Effective Datethis Amendment.
(c) The Guaranty (the "Guaranty"), in substantially the form of Exhibit A attached hereto, shall be duly executed by each Guarantor (as such term is defined in Section 1.1 of the Credit Agreement, as amended by this Amendment), together with any other certificates, instruments or agreements which the Administrative Agent shall have received, on behalf of itself, may reasonably request in connection with the First Lien Collateral Agent Guaranty.
(d) Amendments to all Schedules and Exhibits to the Credit Agreement and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel other Facility Documents as may be necessary to correctly and accurately reflect the status of the Borrower and its Subsidiaries upon the effectiveness of the Infratest Acquisition.
(e) The quarterly consolidated financial statement for the Loan PartiesBorrower and its Subsidiaries for the calendar quarter immediately preceding the current calendar quarter, dated the Amendment No. 3 Effective Date and addressed in form satisfactory to the Administrative Agent, together with cash flow and income projections for the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agentnext three successive calendar quarters.
(df) The Administrative Agent shall have received such Certified copies of (xi) the resolutions of the Board of Directors or Executive Committee of the Borrower approving this Amendment and the documents executed in connection herewith, and resolutions by the Guarantors approving the Guaranty, and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, and the documents executed in connection herewith, including the Guaranty, including, but not limited to, the articles of incorporation, by-laws and good standing certificates of good standing each Guarantor.
(g) A certificate of the Secretary or an Assistant Secretary of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and the Guarantors authorized to sign this Amendment and the Guaranty, respectively, and the other documents to be delivered hereunder.
(h) A favorable opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel for the Borrower and its Subsidiaries and the Guarantors, to the extent effect that this Amendment, the Subordinated Note Purchase Agreement, and the Guaranty have been duly authorized, executed and delivered by the Borrower and/or the Guarantors and as to such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party matters as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and require.
(yi) a certificate, dated as of the Amendment No. 3 Effective Date, A certificate signed by a Responsible Officer duly authorized officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Borrower stating that:
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(fi) The representations and warranties contained in Section 4 of this Amendment and the Borrower other representations and each other Loan Party warranties contained in Article V 5 of the Credit Agreement (unless such representation and any other Loan Document warranty is limited to a particular date, in which case, such representation and warranty shall be true and correct in all material respects as of such date), as amended, including Section 5.9 of the Credit Agreement, are true and correct in all material respects on and as of the date of such certificate as though made on and as of such date,
(ii) The assumption by the Borrower and its Subsidiaries of the IBH Existing Commitments Debt and the IBH Acquisition Debt will not violate any corporate articles, by-laws or stockholder agreements of the Borrower or any of its Subsidiaries, or violate any law, rule, regulation, order, writ, judgment, injunction, or decree relating to the Borrower or any of its Subsidiaries or otherwise cause any default under any loan or credit agreement, indenture, or other document, instrument, lease or agreement which exists as of the date hereof; provided that, relating to the Borrower or any of its Subsidiaries except, in each case, when such contravention, violation, breach or default is not reasonably expected to have a Material Adverse Effect,
(iii) All material documents necessary for the consummation of the Infratest Acquisition and the assumption by the Borrower or its Subsidiaries of the IBH Existing Commitments Debt have been fully executed by all relevant parties thereto, all necessary corporate authorizations, consents and government approvals required to be obtained in connection with the Infratest Acquisition and the IBH Existing Commitments Debt have been obtained or waived, in each case, except to the extent that such representations failure to do so is not reasonably expected to have a Material Adverse Effect, and warranties specifically refer to an earlier date, they shall be true and correct the Infratest Acquisition has been consummated in all material respects as of such earlier date; providedrespects, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.and
(giv) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior After giving effect to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness terms of this Amendment, all documentation no event has occurred and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actis continuing which constitutes a Default or an Event of Default.
(j) The Payment to the Administrative Agent shall have received of (i) an administrative fee in an amount agreed to in writing between the Administrative Agent and the Borrower and (ii) payment of all costs, fees, expenses and charges incurred by the Administrative Agent in connection with the negotiation, preparation, execution and delivery of this Amendment.
(k) Payment to the Administrative Agent of the Incentive Amount, as such term is defined in Section 1(a) of this Amendment.
(l) Payment to the Administrative Agent for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees appropriate Bank of a transaction fee in an amount equal to 0.250.0015% of such Lender’s principal the Commitment of each Bank that currently has a Commitment of US$25,000,000, and in an amount equal to 0.00125% of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective DateCommitment of each Bank that currently has a Commitment of US$12,500,000.
Appears in 1 contract
Samples: Credit Agreement (Nfo Worldwide Inc)
Conditions of Effectiveness. This Amendment Agreement shall become effective as on the 2016 Increased Amount Date upon the satisfaction of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedprecedent set forth in this Section 4:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note from each Borrower and from each other party hereto (including the Administrative Agent, the 2016 Incremental Term Loan Lenders and such other Lenders and Voting Participants constituting the Required Lenders) an executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Datesignature page counterpart of this Agreement.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(jb) The Administrative Agent shall have received for an officer’s certificate from each Borrower including (i) the account authorization of each Lender (other than GECCthe execution, delivery and performance by such Borrower of this Agreement and, in its capacity as the case of ROC, the borrowing of the 2016 Incremental Term B-2 LenderLoan Advances, (ii) that delivered a certification that, after giving effect to the funding of the 2016 Incremental Term Loan Facility on a pro forma basis, Rayonier shall have a Leverage Ratio not greater than 50%, (iii) before and after giving effect to the 2016 Incremental Term Loan Advances, each of the representations and warranties in Article IV of the Credit Agreement shall be true and correct in all material respects (or if qualified by materiality or material adverse effect, in all respects) as of the 2016 Increased Amount Date, or if such representation speaks of an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5earlier date, 2014, consent fees in an amount equal to 0.25% as of such Lender’s principal amount earlier date and (iv) no default or event of default under the Credit Agreement shall have occurred and be continuing or would result from the borrowing of the 2016 Incremental Term B-2 Loans.
(c) The Administrative Agent shall have received a duly executed copy of a guarantee agreement with respect to the 2016 Incremental Term Loan Facility in the form attached hereto as Exhibit B.
(d) Each 2016 Incremental Term Loan Lender requesting a 2016 Incremental Term Loan Note shall have received a copy of such 2016 Incremental Term Loan Note duly executed by ROC.
(e) The Administrative Agent shall have received, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately to the extent invoiced in reasonable detail at least one (1) Business Day prior to the Amendment No. 3 Effective 2016 Increased Amount Date, reimbursement or payment of all reasonable out of pocket expenses (including reasonable fees, charges and disbursements of Xxxxx & Xxx Xxxxx PLLC) required to be reimbursed or paid by the Borrowers pursuant to Section 8.04 of the Credit Agreement in connection with the preparation, negotiation, execution and delivery of this Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (above written when, and only when, the Administrative Agent shall have received counterparts of this Amendment executed by the Company and the Majority Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such date being referred to as Lender has executed this Amendment and the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each Administrative Agent shall have additionally received all of the following conditions shall have been satisfieddocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent, in sufficient copies for each Lender and in form and substance satisfactory to the Administrative Agent:
(a) The Administrative Agent shall have received Certified copies of the resolutions of the Board of Directors of the Company and each Subsidiary Guarantor approving this AmendmentAmendment and the Collateral Agreements (as hereinafter defined) to which it is or is to be a party, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders matters contemplated hereby and (G) the Administrative Agentthereby.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date A certificate of the Secretary or an Assistant Secretary of the Company and each Subsidiary Guarantor certifying the names and true signatures of the officers of the Company and such Subsidiary Guarantor authorized to sign this Amendment No. 3 Effective Dateand the Collateral Agreements to which they are or are to be a party and the other documents to be delivered hereunder and thereunder.
(c) The Administrative Agent shall have receivedA security agreement in substantially the form of Exhibit A hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 7.15 of the Credit Agreement, on behalf of itselfin each case as amended, the First Lien Collateral Agent "Security Agreement"), duly executed by the Company and each ------------------- Subsidiary Guarantor, together with evidence of the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for insurance required by the Loan Parties, dated terms of the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative AgentSecurity Agreement.
(d) The Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit B hereto and covering the properties listed on Schedule II hereto (together with each other mortgage delivered pursuant to Section 7.15 of the Credit Agreement, in each case as amended, the "Mortgages", and together with the Security Agreement, the --------- "Collateral Agreements"), duly executed by the Company or the appropriate ---------------------- Subsidiary.
(e) Evidence of insurance naming the Administrative Agent shall have received as additional insured with such (x) certificates of good standing (responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the extent Lenders.
(f) A favorable opinion of Xxxxxxx & Torrance LLP, counsel for the Company and each Subsidiary Guarantor, in substantially the form of Exhibit C hereto and as to such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party matters as any Lender through the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and request.
(yg) a certificate, dated as of the Amendment No. 3 Effective Date, A certificate signed by a Responsible Officer duly authorized officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and Company stating that: (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(fi) The representations and warranties contained in Section 3 and in each of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and Collateral Agreements delivered pursuant to this Section 2 are correct in all material respects on and as of the date hereof; provided that, to the extent that of such representations certificate as though made on and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, date other than any such representations or warranties that, any representation by their terms, refer to a date other than the date of such certificate; and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(gii) No event has occurred and is continuing that constitutes a Default shall exist, or would result from the effectiveness an Event of this Default. This Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior is subject to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness provisions of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.Section 12.01
Appears in 1 contract
Samples: Credit Agreement (Macdermid Inc)
Conditions of Effectiveness. This The provisions of Section 1(A) of this Amendment shall not become effective as of the first date (such date being referred to as the “unless this Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedexecuted by the Borrower, the Agent and NationsBank, N.
A. The provisions of Section 1(B) of this Amendment shall not become effective unless:
(a) The Administrative this Amendment shall have been executed by the Borrower, the Agent, the Required Lenders and any Lender the Commitment of which is increasing or which is joining the Agreement through this Amendment as a new Lender (the "Required Signatories");
(b) the Agent shall have received this Amendment, duly executed and delivered by (A) from the Borrower, (B) Holdings, (C) Subsidiaries a reaffirmation in the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.form attached as EXHIBIT A hereto;
(c) The Administrative Agent the Borrower shall have receivedpaid to the Agent for the ratable account of each of the Lenders parties to the Original Credit Agreement which have signed this Amendment an amendment fee in the amount of ten basis points applied to their Commitment as in effect immediately prior to this Amendment;
(d) the Borrower shall have paid to the Agent such other fees as have been agreed to between the Borrower and the Agent and/or Arranger;
(e) the Borrower shall have repaid all outstanding Revolving Loans as of the effective date hereof;
(f) the Borrower shall have executed an amended and restated Swing Line Note; and
(g) the Borrower has furnished to the Agent, on behalf of itselfwith sufficient copies for the Lenders, all in form and substance satisfactory to the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed Required Signatories:
(i) Corporate documentation satisfactory to the Administrative Agent, Agent of the First Lien Collateral Agent corporate power and authority of the LendersBorrower and its Subsidiaries in connection with the increased facility;
(ii) A certificate, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer the chief financial officer or treasurer of the Borrower, confirming satisfaction stating that on the effective date of the conditions set Amendment no Default or Unmatured Default has occurred and is continuing, and setting forth in Sections 4(f) and (g)the calculation of the Leverage Ratio as of September 30, 1998.
(eiii) Payment An updated written opinion of all reasonable fees the Borrower's, Guarantors' and expenses due pledged Subsidiaries' general counsel and outside counsel, addressed to the Administrative Agent and the Arrangers Lenders in form and substance reasonably acceptable to the Agent;
(as agreed iv) Revolving Notes payable to in writing between the Administrative Agent and/or order of each of the Arrangers and applicable Lenders where the Commitment of such Lender has changed;
(v) written responses to the Agent's questionnaire regarding the Borrower), in each case required to be paid on 's and its Subsidiaries' plan for addressing the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.Year 2000 Issues; and
(fvi) The representations and warranties Such other documents as the Agent or any of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (Required Signatories or its counsel) shall counsel may have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Datereasonably requested.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Metals Usa Inc)
Conditions of Effectiveness. This Amendment and Restatement shall become effective as when, and only when, (a) King & Spalding shall have received counterparts of the first date (such date being referred to as the “this Amendment No. 3 Effective Date”, which date is August 8, 2014) when and Restatement executed by each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received this Amendment, duly executed Dravo Parties and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and all of the following documents, each (Gunless otherwise indicated) being dated the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of receipt thereof by King & Spalding (which date shall be the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel same for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersall such documents), in form and substance reasonably satisfactory to the Administrative Lenders:
(i) Copies of (A) all documents evidencing all requisite corporate action of each Dravo Party (including any and all resolutions of the Board of Directors of each Dravo Party) authorizing the execution, delivery and performance of this Amendment and Restatement and the matters contemplated hereby and thereby, (B) all documents evidencing all Governmental Approvals, if any, with respect to this Amendment and Restatement and the matters contemplated hereby and thereby, and (C) the certificate or articles of incorporation and by-laws of each Dravo Party.
(ii) A good standing certificate issued by the Secretary of State of its incorporation for each Dravo Party, each dated as of a date not more than five days prior to the date hereof.
(iii) A certificate of the Secretary or an Assistant Secretary of each Dravo Party certifying the names and true signatures of the officers authorized to sign this Amendment and Restatement on behalf of such Dravo Party and any other documents to be delivered by such Dravo Party hereunder.
(iv) Amendment to the First Mortgage and Security Agreement, dated as of January 21, 1992, by Lime in favor of the Collateral Agent, recorded in Pendleton County, Kentucky, xxxx xxecuted by Lime and the Collateral Agent.
(dv) The Administrative Agent shall have received such (x) certificates A signed copy of good standing (a commitment for title insurance providing for a date-down endorsement to the extent such concept existstitle insurance policy issued by Commonwealth Land Title Insurance Company, Loan Policy Number E0835807, covering the land utilized by the Project in Pendleton County, Kentucky, containing sxxx exceptions as the Lenders may determine to be acceptable.
(vi) from the applicable secretary A Warranty Bill of state Sale and Assignment, pursuant to which all of the state personal property conveyed by Lime to Dravo Black River Limited Partnership (the "SPV") under the Warranty Bill of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority Sale and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificateAssignment, dated as of Xxxust 1, 1994, by Lime to the Amendment No. 3 Effective DateSPV, signed is conveyed back to Lime, duly executed by a Responsible Officer of Lime and the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g)SPV.
(evii) Payment An Improvements Deed, pursuant to which all of all reasonable fees and expenses due the Improvements conveyed by Lime to the Administrative SPV under the Improvements Deed, dated as of August 1, 1994, by Lime to the SPV, are conveyed back to Lime, duly executed by Lime and the SPV.
(viii) Financing Statements on Form UCC-1 covering the personal property conveyed under the Warranty Bill of Sale and Assignmexx xelivered pursuant to clause (vi) above, to be filed in all jurisdictions as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests of the Collateral Agent therein.
(ix) A Termination of Ground Lease, pursuant to which the Ground Lease, dated as of August 1, 1994, between Lime and the SPV will be terminated of record, duly executed by Lime and the SPV.
(x) A Termination of Easement Agreement, pursuant to which the Easement Agreement, dated as of August 1, 1994, between Lime and the SPV will be terminated of record, duly executed by Lime and the SPV.
(xi) A Termination of Mortgage Subordination Agreement, pursuant to which the Mortgage Subordination Agreement, dated as of August 1, 1994, by the Collateral Agent in favor of the SPV will be terminated of record, duly executed by the Collateral Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective DateSPV.
(fxii) The representations A favorable opinion of Buchanan Ingersoll, Profexxxxxxx Corporation, special counsel for the Dravo Parties, in form and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, substance satisfactory to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesLenders.
(gxiii) No Default shall existSuch other documents, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
instruments, approvals (h) The Administrative Agent (or its counsel) shall have received a Note executed and, if required by the Borrower for each Agent, certified duplicates of executed copies thereof) or opinions as the Agent or any Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Datemay reasonably request.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Override Agreement (Dravo Corp)
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of is subject solely to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedprecedent that:
(a) The Administrative Agent shall have received counterparts of this Amendment, Amendment duly executed by the Borrowers, the Lenders (including the Departing Lender) and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Incremental Term B-2 Loans not later than 5:30 p.m. (New Yorkorganization, New York time) on existence and good standing of the Business Day prior Loan Parties, the authorization of this Amendment and the Transactions and any other legal matters relating to the requested date of Loan Parties, the Loan Documents, this Amendment No. 3 Effective Date.or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel;
(c) The Administrative Agent shall have receivedreceived a certificate signed by the President, on behalf a Vice President or a Financial Officer of itselfthe Company, certifying that, after giving effect to this Amendment, the First Lien Collateral Agent Borrowers are in compliance with paragraphs (a) and (b) of Section 4.02 of the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.Credit Agreement;
(d) The Administrative Agent shall have received such received, for the account of each Lender (xexcluding the Departing Lender) certificates of good standing (party hereto that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, an upfront amendment fee in an amount equal to the extent such concept exists) from amount previously disclosed to the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Lenders; and
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the date of this Amendment, including, to the extent invoiced, payment and/or reimbursement of the Administrative Agent’s and its Affiliates’ reasonable and documented out-of-pocket fees and expenses (including reasonable fees, charges and disbursements of counsel for the account Administrative Agent) required to be reimbursed or paid by the Borrowers in connection with this Amendment and the other Loan Documents.
(f) The Administrative Agent shall have made such reallocations of each Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement as are necessary in order that the Revolving Credit Exposure with respect to such Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of reflects such Lender’s principal amount Applicable Percentage of Term B-2 Loans, the Revolving Credit Exposure under the Credit Agreement as amended hereby. The Borrowers hereby agree to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans and/or Revolving and the reallocation described in this clause (f), in each case on the terms and in the manner set forth in Section 2.16 of the Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective DateAgreement.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Conditions of Effectiveness. This Amendment Agreement shall become effective as of the first date (such date being referred to as the “First Amendment No. 3 Effective Date”, which date is August 8, 2014) when each that all of the following conditions precedent shall have been satisfied:
(a) 3.1 The Administrative Agent Agent’s receipt of the following, each of which shall have received this Amendmentbe e-mails (in a .pdf format) or telecopies (in each case, duly executed and delivered followed promptly by (A) originals to the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) extent requested by the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, each in form and substance reasonably satisfactory to the Administrative Agent.:
(da) The Administrative Agent shall have received counterparts of this Agreement, duly executed by the parties hereto;
(b) such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer officer thereof authorized to act as a Responsible Officer in connection with this Amendment Agreement and the other Loan Documents to which such Loan Party is a party;
(yc) a certificatesuch documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, dated and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(d) opinions of Xxxxxxx Procter LLP as of counsel to the Amendment No. 3 Effective DateLoan Parties as to the matters concerning the Loan Parties, signed by a Responsible Officer of this Agreement and the Borrower, confirming satisfaction of other Loan Documents as the conditions set forth in Sections 4(f) and (g).Administrative Agent may reasonably request; and
(e) Payment a certificate of all reasonable fees and expenses due the Borrower to the Administrative Agent effect that (i) the conditions specified in Sections 3.2 and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall 3.3 have been paid all accrued satisfied, and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date(ii) no event has occurred and is continuing which constitutes an Unmatured Default.
(f) 3.2 The representations and warranties of the Borrower and each other Loan Party contained in Article V Section 4 of the Credit this Agreement and any other Loan Document shall be are true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier dateprovided in Section 4 of this Agreement.
3.3 There shall not have occurred since December 31, they shall be true and correct in all material respects as of such earlier date; provided, further, that2021, any representation and warranty event or circumstance, either individually or in the aggregate, that is qualified as has had or could reasonably be expected to “have a Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) 3.4 The Administrative Agent (or its counsel) and each Lender shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with respect to the Loan Parties required by regulatory authorities its ongoing obligations under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT U.S. Patriot Act.
(j) The Administrative Agent shall have received for , and the account of each Lender (other than GECCBeneficial Ownership Regulation, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page each case, to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately extent requested at least five Business Days prior to the First Amendment No. 3 Effective Date.
3.5 Any fees owed to any Lender or Arranger required to be paid on or before the First Amendment Effective Date shall have been paid.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of on the first date hereof (such date being referred to as the “Amendment No. 3 2 Effective Date”, which date is August 8, 2014) when each upon the satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received counterparts to this Amendment, duly executed and delivered by (A) each of the Borrower, (B) Holdingsthe Lenders, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent., the Issuing Bank and the Swingline Lender;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect favorable written opinions (addressed to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on Administrative Agent and the Business Day prior to the requested date of Lenders and dated the Amendment No. 3 2 Effective Date.) of (i) Sidley Austin LLP, counsel for the Loan Parties, and (ii) in-house legal counsel for the Loan Parties, in each case, covering such matters relating to the Loan Parties and this Amendment as the Administrative Agent shall reasonably request;
(c) The Administrative Agent shall have receivedreceived certificates of the secretary or an assistant secretary of each Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of itselfsuch Loan Party), certifying as to (i) specimen signatures of the First Lien Collateral Agent persons authorized to execute Loan Documents to which such Loan Party is a party, (ii) copies of resolutions of the board of directors or other appropriate governing body of such Loan Party authorizing the execution and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the delivery of this Amendment and (iii) copies of such Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.Party’s constituent organizational documents;
(d) The Administrative Agent shall have received such (x) certificates received, for each Loan Party, a certificate of good standing (or the equivalent) from the appropriate governing agency of such Loan Party’s jurisdiction of organization (to the extent the concept of good standing is applicable in such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (gjurisdiction).; and
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received payment of the Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the account of each Lender (other than GECC, Administrative Agent) in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to connection with this Amendment and any other Loan Document, and for which invoices have been presented at least one (the “Consent”1) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Day prior to the Amendment No. 3 2 Effective Date, in each case, to the extent payment is required by Section 9.03(a) of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as 3.1 The agreement of the first date (such date being Parties referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014in clauses 2(a) when and 2(b) shall be subject to each of the following conditions shall have been satisfied(other than, in the case of clause 2(b), the conditions set out in clauses 3.1(e), (h) and (k)) being satisfied to the reasonable satisfaction of the Facility Agent:
(a) The Administrative the Facility Agent shall have received from the New Borrower:
(i) a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment, duly executed and delivered by (A) upon which certificate the Borrower, (B) Holdings, (C) Lenders may conclusively rely until the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Facility Agent shall have received a Committed Loan Notice with further certificate of the Secretary or Assistant Secretary of the New Borrower cancelling or amending such prior certificate; and
(ii) a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the New Borrower;
(b) the Facility Agent shall have received from the Existing Borrower:
(i) a certificate from an authorised officer of the Existing Borrower, confirming that there have been no changes or amendments to its constitutional documents, certified copies of which were previously delivered to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior Facility Agent pursuant to the requested date Facility Agreement, or attaching revised versions in case of any changes or amendments; and
(ii) a copy, certified by an authorised officer of the Existing Borrower, of (A) resolutions of its board of directors approving the transactions contemplated by this Amendment No. 3 Effective Date.and authorising a person or persons to execute this Amendment and any notices or other documents to be given pursuant hereto and (B) any power of attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn);
(c) The Administrative the Facility Agent shall have received, on behalf received a duly executed copy of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.each Fee Letter;
(d) The Administrative the Facility Agent shall have received such evidence that all invoiced expenses of the Facility Agent (x) certificates including the agreed fees and expenses of good standing (counsel to the extent such concept existsFacility Agent) from required to be paid by the applicable secretary of state of New Borrower pursuant to clause 6 below, and all other documented fees and expenses that the state of organization of each Loan PartyNew Borrower has otherwise agreed in writing to pay to the Facility Agent, certificates of resolutions have been paid or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).will be paid promptly upon being demanded;
(e) Payment of all reasonable fees and expenses due to the Administrative ECA Agent and the Arrangers Facility Agent shall have received evidence satisfactory to the ECA Agent and the Facility Agent (as agreed acting on the instructions of the Lenders) that BpiFAE has approved the arrangements referred to in writing between the Administrative Agent and/or the Arrangers and the Borrowerclause 2(a), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.;
(f) The the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i) Wxxxxx Xxxxxx & Wxxxxxxx LLP, counsel to the New Borrower, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in respect of the Fourth Novation Agreement Supplement); and
(ii) Norton Rxxx Xxxxxxxxx LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in respect of the Fourth Novation Agreement Supplement), or, where applicable, a written approval in principle (which can be given by email) by any of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;
(g) the representations and warranties of the Borrower and each other Loan Party contained set out in Article V of the Credit Agreement and any other Loan Document shall be clause 4 are true and correct in all material respects on and as of the date hereof; provided that, to the extent that (except for such representations and warranties specifically refer to an earlier date, they that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
(h) no Event of Default shall have occurred and be continuing or would result from the amendment of the Novation Agreement pursuant to clause 2(a);
(i) the Existing Borrower and the New Borrower shall, as required pursuant to clause 5, have each provided a letter to the Facility Agent which confirms that the relevant process agent has accepted its appointment as process agent in respect of this Amendment;
(j) the Facility Agent shall have received from the Existing Borrower and the New Borrower such documentation and information as any Finance Party may reasonably request through the Facility Agent to comply with "know your customer" or similar identification procedures under all laws and regulations applicable to that Finance Party; and
(k) the Facility Agent shall have received evidence that, as required pursuant to clause 9.6(c) of the Receivable Purchase Agreement, the Seller has consented to the amendments to the Novation Agreement to be made pursuant to clause 2(a).
3.2 The agreement of the Parties referred to in clause 2(b) shall be subject further to each of the following conditions being satisfied to the reasonable satisfaction of the Facility Agent:
(a) the Facility Agent having received an amendment to the BpiFAE Insurance Policy in respect of the amendments referred to in clause 2(b), duly signed and issued by BpiFAE in a form and substance satisfactory to the Lenders;
(b) the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.the Further Amendment Effective Date;
(gc) No no Event of Default shall exist, have occurred and be continuing or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.further amendments to be made pursuant to clause 2(b); and
(hd) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Facility Agent shall have received for evidence that, as required pursuant to clause 9.6(c) of the account Receivable Purchase Agreement, the Seller has consented to the further amendments to the Novation Agreement to be made pursuant to clause 2(b).
3.3 The Facility Agent shall notify the Lenders, the Existing Borrower and the New Borrower of each Lender (other than GECCthe Amendment Effective Date and the Further Amendment Effective Date, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (each case by way of a confirmation in the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees applicable form set out in an amount equal to 0.25% of Schedule 2 and each such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Dateconfirmation shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The Effective Date of this Agreement shall become effective as of the first be _________________, 2000 or any such later date (such date being referred to as the “Amendment No. 3 Effective Date”, on which date is August 8, 2014) when each all of the following conditions shall have been satisfied:
(aA) The Administrative Agent no law, regulation, order, judgment or decree of any Governmental Authority shall, and no Lender shall have received this Amendmentany notice that litigation is pending or threatened which is likely to, duly executed and delivered by (Aa) enjoin, prohibit or restrain the Borrower, making of an Advance hereunder or (b) impose or result in the imposition of a Material Adverse Effect;
(B) Holdings, all due diligence materials requested by the Lenders from the Borrower shall have been delivered to the Lenders and such due diligence materials shall be in form and substance satisfactory to the Lenders;
(C) the GuarantorsBorrower has furnished to the Agent each of the following, all in form and substance satisfactory to the Agent:
(Di) this Agreement, duly executed by the Borrower;
(ii) the Incremental Term B-2 Notes, duly executed by the Borrower in favor of each Lender;
(iii) the Cross Agreement executed by Borrower, each Dealership Guarantor, each Non-Dealership Guarantor and each Subsidiary Holding Company;
(iv) a Dealership Guaranty executed by each Sonic Dealership to the Agent;
(v) a Dealership Security Agreement executed by each Sonic Dealership to the Agent;
(vi) a Subsidiary Holding Company Guaranty executed by each Subsidiary Holding Company to Agent;
(vii) a Subsidiary Holding Company Security Agreement executed by each Subsidiary Holding Company to Agent;
(viii) the Contribution Agreement;
(ix) the Borrower Pledges, the Subsidiary Holding Company Pledges and Sonic Financial's Pledge, together with, for each corporate entity so acquired, a stock certificate evidencing the issued and outstanding pledged stock and undated stock powers executed in blank;
(x) to the extent any Sonic Dealership, Non-Dealership Guarantor or Subsidiary Holding Company has any Indebtedness other than Permitted Indebtedness, pay-out letters, releases and UCC-3 Termination Statements, where applicable, from all third-party creditors releasing all Liens securing any such Indebtedness;
(xi) Certificates of good standing for the Borrower, and if requested by Lender, each Subsidiary Holding Company, each Non-Dealership Guarantor and each Dealership Guarantor from its jurisdiction of incorporation and each other jurisdiction where the nature of its business requires it to be qualified as a foreign corporation;
(Fxii) a Secretary's Certificate from the Required Lenders Borrower, each Subsidiary Holding Company, each Non-Dealership Guarantor and (G) each Sonic Dealership acquired by the Administrative AgentBorrower on or prior to the date hereof.
(bxiii) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenderscertificate, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to Lender, signed by the extent such concept exists) from the applicable secretary of state chief financial officer of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated Borrower stating that as of the Amendment No. 3 Effective Date, signed by a Responsible Officer no Event of Default or Unmatured Default has occurred and is continuing and setting forth the calculation of the Borrower, confirming satisfaction Sonic Group's Scaled Assets as of the conditions set forth in Sections 4(f) and (g).
(e) Payment most recent quarterly report of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days Scaled Assets published by Borrower prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectivenessdate of this Agreement, and the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct in all material respects with full force and effect as if made on and as of the date hereof; provided that, Effective Date;
(xiv) to the extent that such representations not included in the foregoing, the documents, instruments and warranties specifically refer to an earlier date, they shall be true and correct in all material respects agreements set forth on the closing list attached as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.Exhibit E hereto;
(gxv) No Default shall existsuch consents, waivers or would result from other documents as the effectiveness of this Amendment Lender or from the application of the proceeds thereof.its counsel may have reasonably requested;
(hxvi) The Administrative Agent (or its counsel) shall have received a Note Non-Dealership Guaranty executed by the Borrower for each Lender that requests such a Note at least two Business Days prior Non-Dealership Guarantor to the Amendment No. 3 Effective Date.Agent; and
(ixvii) To the extent reasonably requested a Non-Dealership Security Agreement executed by the Arrangers in writing not less than five (5) Business Days prior each Non- Dealership Guarantor to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActAgent.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment and the obligation of each Additional Lender to makes Loans on the First Amendment Effective Date shall become effective as be subject to the satisfaction of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been precedent (the date on which all such conditions are satisfied:, the “First Amendment Effective Date”):
(a) The the Administrative Agent shall have received counterparts of this Amendment, duly Amendment executed and delivered by (A) the each Borrower, (B) Holdingseach other Credit Party, (C) the GuarantorsAdministrative Agent, (D) the Required Lenders, the Incremental Term B-2 Lender, (F) the Required Loan Lenders and (G) the Administrative Agent.Incremental Revolving Credit Lenders;
(b) The the Administrative Agent shall have received counterparts of Notes in favor of each applicable Lender (in each case, if requested thereby), duly executed by the applicable Borrower thereto;
(c) the representations and warranties of the Borrowers contained in Section 6 shall be true and correct;
(d) the Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date certificate of a Responsible Officer of the US Borrower certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or equivalent) of the US Borrower authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment No. 3 Effective Date.and the other Loan Documents executed in connection herewith to which it is a party;
(ce) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates a certificate from a Financial Officer of good standing (the US Borrower setting forth reasonably detailed calculations demonstrating pro forma compliance with Section 9.12 of the Credit Agreement based on the financial statements most recently delivered pursuant to Section 8.1 of the Credit Agreement after giving effect to the extent such concept existsIncremental Increases made pursuant to this Amendment (assuming that the entire Incremental Term Loan and Revolving Credit Facility Increase is fully funded on the First Amendment Effective Date);
(f) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the preparation, negotiation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (y) a certificateincluding, dated as without limitation, the reasonable fees, charges and disbursements of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to legal counsel for the Administrative Agent in connection with the preparation, negotiation, execution and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement delivery of this Amendment) shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, by the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereofBorrowers; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.and
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) US Borrower shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior paid all fees payable to the Amendment No. 3 Effective DateArranger pursuant to that certain engagement letter dated as of September 19, 2012 by and among the US Borrower and the Arranger.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Sixth Amendment shall become --------------------------- effective as of when, and only when, the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions Bank shall have been satisfiedreceived a counterpart of this Sixth Amendment executed by the Borrower and shall have additionally received, in form and substance satisfactory to the Bank:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by A certificate of a Senior Officer of the Borrower stating that:
(Ai) the Borrowerrepresentations and warranties contained in Article 5 of the Credit Agreement are correct on and as of the date of such certificate as though made on and as of such date (or, if such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(Bii) Holdingsother than the Events of Default identified in Section 2(a) above, no Event of Default or Default has occurred and is continuing or would result from the signing of this Sixth Amendment or the transactions contemplated thereby; and
(Ciii) there has been no material adverse change in the Guarantorsfinancial condition, (D) operations, Properties, business or business prospects of the Incremental Term B-2 LenderBorrower and its Subsidiaries, (F) the Required Lenders and (G) the Administrative Agentif any, since March 31, 1999.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to A Revolving Note for the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date account of the Amendment No. 3 Effective DateBank duly executed by the Borrower.
(c) The Administrative Agent shall have received, on behalf A certificate of itself, the First Lien Collateral Agent and Secretary or Assistant Secretary of the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan PartiesBorrower, dated the Amendment No. 3 Effective Date Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and addressed performance of this Sixth Amendment, the Revolving Note and each other document to be delivered pursuant to this Sixth Amendment, and attesting to the Administrative Agentnames and true signatures of the officers of the Borrower authorized to sign this Sixth Amendment, the First Lien Collateral Agent Revolving Note and the Lenders, in form and substance reasonably satisfactory other documents to be delivered by the Administrative AgentBorrower under this Sixth Amendment.
(d) The Administrative Agent shall have received US Holdings Guaranty duly executed by US Holdings, Inc.
(e) A certificate of the Secretary or Assistant Secretary of US Holdings, Inc., dated the date of the Amendment Closing Date, attesting on behalf of US Holdings, Inc. to all corporate action taken by it, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the US Holdings Guaranty and each other document to be delivered pursuant to the US Holdings Guaranty, and attesting that its Certificate of Incorporation and Bylaws are in full force and effect and are attaching true and correct copies of such documents and attesting to the names and true signatures of the officers of US Holdings, Inc. authorized to sign the US Holdings Guaranty and the other documents delivered by US Holdings, Inc. and
(xf) certificates A certificate of good standing (to the extent such concept exists) standing, including a tax good standing, for US Holdings, Inc. from the applicable secretary Secretary of state the State of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesits incorporation.
(g) No Default shall existA favorable opinion of X.X. Xxxx, or would result from Professional Law Corporation, counsel to the effectiveness of this Amendment or from Borrower, dated the application of effective date hereof, in form and substance satisfactory to the proceeds thereofBank and its special counsel.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior Payment to the Amendment No. 3 Effective DateBank of an amendment fee in the amount of $37,500.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior Payment to Day, Xxxxx & Xxxxxx LLP, special counsel to the Amendment No. 3 Effective DateBank, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation its legal fees and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actdisbursements.
(j) The Administrative Agent shall have received for All information and documents relating to the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit CommitmentsBorrower, as applicablethe Bank may reasonably request, outstanding immediately prior all in form and substance satisfactory to the Amendment No. 3 Effective DateBank and its special counsel.
Appears in 1 contract
Samples: Credit Agreement (Centris Group Inc)
Conditions of Effectiveness. This Amendment shall become effective as of when, and only when, the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when Lender shall have received each of the following conditions which, in the case of documents, shall have been satisfiedbe in form and substance satisfactory to the Lender and dated the date hereof or as of an earlier date acceptable to the Lender:
(ai) The Administrative Agent shall have received a counterpart of this Amendment, duly executed Authenticated by the Borrower;
(ii) an amendment to the Security Agreement, in substantially the form of Exhibit A hereto, Authenticated by the Xxxxxx Subsidiaries;
(iii) an amendment and delivered joinder to the Guaranty, in substantially the form of Exhibit B hereto, Authenticated by the Xxxxxx Subsidiaries;
(iv) a joinder to the Loan Agreement, in substantially the form of Exhibit C hereto, Authenticated by AHS;
(v) an amended and restated promissory note in the maximum principal amount of $7,000,000, in substantially the form of Exhibit D hereto, Authenticated by Xxxxxx Xxxxxx and AHS;
(vi) a certificate of an officer or the managing member, as the case may be, of each of Xxxxxx Xxxxxx and AHS certifying (A) that attached thereto are true and complete copies of (I) its certificate of incorporation or formation, as the Borrowercase may be, (II) its bylaws or limited liability company agreement, as the case may be, and (III) the resolutions or a unanimous written consent of its board of directors or its managers, as the case may be, authorizing the execution, delivery and performance of this Amendment and the other agreements, instruments and documents delivered in connection herewith to which Xxxxxx Xxxxxx or AHS, respectively, is a party and (B) Holdingsthe incumbency, (C) names and true signatures of the Guarantorsofficers or managers, (D) as the Incremental Term B-2 Lendercase may be, (F) of Xxxxxx Xxxxxx or AHS authorized to sign this Amendment and the Required Lenders other agreements, instruments and (G) documents delivered in connection herewith to which the Administrative Agent.Xxxxxx Xxxxxx or AHS is a party;
(bvii) The Administrative Agent shall have received evidence that the Borrower has delivered a Committed Loan Notice with respect copy of this Amendment to the Incremental Term B-2 Loans not later than 5:30 p.m. SWK Funding LLC (New York, New York time“SWK”) on the Business Day prior pursuant to the requested date Section 6.1.10 of the Amendment No. 3 Effective Date.Credit Agreement dated as of April 17, 2015 between the Borrower and SWK;
(cviii) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York of counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersAHS, in form and substance reasonably satisfactory to the Administrative Agent.Lender; and
(dix) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state payment of the state of organization of each Loan Partycosts and expenses (including, certificates of resolutions or other actionwithout limitation, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as attorneys’ fees) incurred by the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Lender in connection with the preparation, execution and delivery of this Amendment and (y) a certificatethe agreements, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth instruments and documents delivered in Sections 4(f) and (g)connection herewith.
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment No. 1 shall become effective as of the date first date above written (such date being referred to as the “Amendment No. 3 Effective Date”) when, and only when, (i) the Agent shall have received counterparts of this Amendment No. 1 executed by the Company, the Guarantor, the Successor Borrower, the Parent Guarantor and the Required Lenders, (ii) the Parent Guarantor has acquired the Company by means of a merger of the Company with and into a direct wholly-owned subsidiary of the Parent Guarantor, as a result of which date is August 8, 2014the Successor Borrower has become a Borrower under the Credit Agreement (it being understood that each Lender signing this Amendment No. 1 has thereby consented to such merger and to such wholly-owned subsidiary of the Parent Guarantor becoming a Borrower under the Credit Agreement) when each and (iii) the Agent shall have additionally received all of the following conditions shall have been satisfieddocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent:
(a) The Administrative Agent shall have received this Amendment, duly executed Certified copies of the resolutions of the Board of Directors of the Parent Guarantor and delivered by (A) of the Board of Directors of the Successor Borrower, (B) Holdingsrespectively, (C) approving this Amendment No. 1 and the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agentmatters contemplated hereby.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date A certificate of the Secretary or an Assistant Secretary of the Parent Guarantor and of the Secretary or an Assistant Secretary of the Successor Borrower, respectively, certifying the names and true signatures of the officers of the Parent Guarantor and the Successor Borrower, respectively, authorized to sign this Amendment No. 3 Effective Date1.
(c) The Administrative Agent shall have received, on behalf An opinion of itself, Deputy General Counsel of the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersParent Guarantor, in substantially the form and substance reasonably satisfactory to the Administrative Agent.of Exhibit A.
(d) The Administrative Agent shall have received such (x) certificates An opinion of good standing (Wxxxxx Cxxxxxx Xxxxxxxxx & Rxxx, special North Carolina counsel to the extent such concept exists) from Parent Guarantor, in substantially the applicable secretary form of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Exhibit B.
(e) Payment An opinion of all reasonable fees and expenses due Dxxxx Xxxx & Wxxxxxxx LLP, special New York counsel to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower)Parent Guarantor, in each case required to be paid on substantially the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.form of Exhibit C.
(f) A certificate signed by a duly authorized officer of the Company stating that:
(i) The representations and warranties of the Borrower and each other Loan Party contained in Article V Section 3 of the Credit Agreement and any other Loan Document shall be true and this Amendment No. 1 are correct in all material respects on and as of the date hereof; provided that, to the extent that of such representations certificate as though made on and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and
(ii) No event has occurred and warranty is continuing that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesconstitutes a Default.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application A certificate signed by a duly authorized officer of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.Parent Guarantor stating that:
(i) To The representations and warranties contained in Section 4.01 of the extent reasonably requested by Credit Agreement, as amended hereby, are correct on and as of the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness date of this Amendment, all documentation such certificate as though made on and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.as of such date; and
(jii) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) No event has occurred and is continuing that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Dateconstitutes a Default.
Appears in 1 contract
Samples: Credit Agreement (Pepsico Inc)
Conditions of Effectiveness. This Amendment Agreement shall become effective as when (i) the Administrative Agent shall have received counterparts of this Agreement executed by the first date Borrower and all Lenders party hereto, (such date being referred ii) the Administrative Agent shall have received the fees provided to as be paid pursuant to the “Amendment No. 3 Effective Date”, which date is August 8, 2014Fee Letter and (iii) when the Administrative Agent shall have received each of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto, and (except for the Notes) to be in sufficient copies for each Lender), and the conditions specified below shall have been satisfied:
(a) The A Facility A Note payable to the order of the Administrative Agent and a Facility A Note payable to the order of each Facility A Lender that shall have received requested a Facility A Note in accordance with this Amendment, duly executed Agreement; a Facility B Revolver Note and delivered by (A) a Facility B Term Note payable to the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) order of the Administrative AgentAgent and a Facility B Revolver Note and Facility B Term Note payable to the order of each of the Facility B Lenders that shall have requested such Notes in accordance with this Agreement.
(b) The Administrative Agent shall have received From each Subsidiary of the Borrower (except for the Mortgage Banking Subsidiaries and the Subsidiaries listed in Schedule VII hereto), a Committed Loan Notice with respect Guaranty executed and delivered as of the Closing Date or, if such Subsidiary has heretofore executed and delivered a Guaranty pursuant to the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkOriginal Credit Agreement or the Existing Credit Agreement, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Datea written instrument executed by such Guarantor ratifying such Guaranties.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and favorable written opinions addressed to the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed in form and substance satisfactory to the Administrative Agent, the First Lien Collateral Agent and the Lendersfrom (i) Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx, in form and substance reasonably satisfactory LLP (counsel to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required with respect to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(fA) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and (B) any other Loan Document Parties (other than those (if any) that are Subsidiaries of New U.S. Home) that are incorporated or formed under Florida, Delaware or New York law and that deliver a Guaranty on the Closing Date, which opinion shall be true and correct substantially in all material respects on and as of the date hereof; provided that, form delivered pursuant to the extent that such representations and warranties specifically refer to an earlier date, they Existing Credit Agreement but which shall be true limited to this Agreement and correct the Notes and Guaranties delivered on the Closing Date hereunder and (ii) (if applicable) from Xxxxxx Xxxx (Executive Director- Legal, of New U.S. Home) substantially in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior form delivered pursuant to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information Existing Credit Agreement but only with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” Subsidiaries of New U.S. Home (if any) that deliver Guaranties on the Closing Date hereunder. The Borrower hereby instructs such counsel to prepare their opinions and anti-money laundering rules and regulations, including without limitation deliver such opinions to the PATRIOT Act.
(j) The Administrative Agent shall have received Lenders for the account benefit of each Lender (other than GECCthe Lenders, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page and such opinions shall contain a statement to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Dateeffect.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. This Amendment Ninth Amendatory Agreement shall be operative as of the date hereof but shall become effective when, and only when, the Agent shall have received (x) full and final payment of a $25,000 fee; (y) counterparts of this Ninth Amendatory Agreement executed by the Borrower and the Lenders or, as to any of said Lenders, advice satisfactory to the first date Agent that such Lender has executed this Ninth Amendatory Agreement and (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014z) when each all of the following conditions shall have been satisfieddocuments, each document (unless otherwise indicated) being dated the effective date, in form and substance satisfactory to the Agent:
(a) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this AmendmentNinth Amendatory Agreement, duly executed and the other documents to be delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.hereunder;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, certificate signed by a Responsible Officer duly authorized officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Borrower stating that:
(ei) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained as set forth in Article V IV of the Credit Agreement and in any other documents delivered therewith, including the Loan Document shall be Documents, are true and correct in all material respects on and as of the date hereof; provided that, to the extent that of such certificate as though made on and as of such date (except insofar as such representations and warranties specifically refer relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a prior date, they shall be true ),
(ii) the representations and warranties contained in Section 3 hereof are correct in all material respects on and as of the date of such certificate as though made on and as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.and
(giii) No after giving effect to this Ninth Amendatory Agreement, no Default shall exist, or would result from the effectiveness Event of this Amendment or from the application of the proceeds thereof.Default has occurred and is continuing;
(hc) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
certified copies of (i) To the extent reasonably requested by resolutions of the Arrangers in writing not less than five Board of Directors of the Borrower and of the Guarantor approving this Ninth Amendatory Agreement and (5ii) Business Days prior to the Amendment No. 3 Effective Dateall documents evidencing other necessary corporate action and governmental approvals, the Administrative Agent shall have receivedif any, prior to the effectiveness of this Amendment, all documentation and other information with respect to this Ninth Amendatory Agreement and the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.matters contemplated hereby; and
(jd) The Administrative Agent shall have received a favorable opinion of Xxxxxxx & Xxxxxxx, counsel for the account of each Lender (other than GECCBorrower and the Guarantor, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior a form reasonably acceptable to the Amendment No. 3 Effective DateAgent and Lenders.
Appears in 1 contract
Conditions of Effectiveness. This Sections 1, 2 and 6 of this Amendment shall become effective as of subject to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions precedent as of the date (the "Fourth Amendment Effective Date") when all such conditions shall first have been satisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment, Amendment duly executed and delivered by (A) the Borrower, (B) Holdingsthe Agent, (C) the Guarantors, (D) Issuing Bank and the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative AgentSuper Majority Lenders.
(b) The Administrative Agent Borrower shall have received a Committed Loan Notice with respect paid all amounts accrued and payable under Section 9.04 of the Credit Agreement (including those relating to this Amendment) to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior extent that request for such payment has been made to the requested date of the Amendment No. 3 Effective DateBorrower.
(c) The Administrative Agent shall have received, on behalf in immediately available funds for application as specified in Sections 2.10(a)(ii)(A) of itself, the First Lien Collateral Agent and the LendersCredit Agreement, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed amount equal to the Administrative Agentamount certified in the certificate referred to in Section 5(e)(i) hereof as the amount, if any, of the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory cash consideration payable to the Administrative AgentBorrower at the PFI Closing pursuant to Section 1.3.1.1 of the PFI Stock Purchase Agreement.
(d) The Administrative Agent shall have received such evidence satisfactory to it that (x) certificates of good standing (the PFI Stock Purchase Agreement and the documents to be delivered thereunder have been amended to the extent such concept exists) from determined by the applicable secretary of state Agent to be reasonably necessary in order for the Borrower's interest in the PFI Stock Purchase Agreement and the non-cash consideration payable thereunder to be amenable to pledge and assignment to the Agent for the benefit of the state Lenders and Issuing Bank pursuant to the terms of organization of each Loan Partythe PFI Consideration Collateral Documents, certificates of resolutions or other actionsuch that the rights and remedies provided for therein will be available to the Agent, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing Lenders and the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Issuing Bank and (y) a certificate, dated no amendments to the PFI Stock Purchase Agreement or the Georgia/Alabama Breakup Fee Agreement (as of defined below) have been made other than those referred to in the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(fforegoing clause (x) and (g)such others as shall have been approved by the Agent.
(e) Payment of all reasonable fees The Agent shall have received the following, each dated the Fourth Amendment Effective Date (unless otherwise specified), in form and expenses due substance satisfactory to the Administrative Agent Agent, the Issuing Bank and the Arrangers Majority Lenders and (unless otherwise specified) in sufficient copies for the Agent, Issuing Bank and each Lender:
(i) A certificate of the Borrower, signed by the Borrower's Chief Executive Officer, Chief Financial Officer or other officer duly authorized, certifying as follows:
(A) that the PFI Closing has occurred in accordance with the terms of the PFI Stock Purchase Agreement without any waiver of the conditions thereto;
(B) that attached thereto is a true and complete copy of each of the PFI Stock Purchase Agreement and the Georgia/Alabama Purchase Agreement (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrowerdefined below), in each case required to be paid as in effect on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.such date;
(fC) The the amount of cash payable at the PFI Closing pursuant to Section 1.3.1.1 of the PFI Stock Purchase Agreement; and
(D) that (1) each of the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be Section 3 hereof is true and correct in all material respects on and as of the date hereof; provided that, of such certificate and (2) after giving effect to the extent that such representations PFI Stock Sale and warranties specifically refer to an earlier dateSections 1 and 2 hereof, they shall be true no event has occurred and correct in all material respects as is continuing which constitutes a Default or Event of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesDefault.
(gii) No Default shall exist, or would result from the effectiveness of this Amendment or from the application Certified copies of the proceeds thereofresolutions of the Board of Directors of the Borrower approving each Loan Document to which it is or is to be a party in connection herewith, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect each such Loan Document.
(hiii) The Administrative A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and each other Loan Document which it is or is to be party and the other documents to be delivered hereunder and thereunder.
(iv) A Pledge, Security and Assignment Agreement, in form and substance satisfactory to the Agent (or its counsel) shall have received a Note the "PFI Consideration Pledge Agreement"), duly executed by the Borrower for each Lender that requests such a Note at least two Business Days prior Borrower, granting security interests in and pledges of, the collateral describe therein, including, without limitation, all of the Borrower's right, title and interest in and to the Amendment No. 3 Effective Datefollowing and the rights and interests arising thereunder:
(A) the note to be delivered by FPA pursuant to Section 1.3.1.2 of the PFI Stock Purchase Agreement (the "FPA Note");
(B) the FPA Closing Stock and all additional shares of FPA Stock as may be held by the Borrower and indebtedness of FPA as may be owed to the Borrower in each case from time to time;
(C) the warrants to be delivered by FPA pursuant to Section 1.3.3 of the PFI Stock Purchase Agreement (the "FPA Warrants");
(D) the registration rights agreement to be entered into pursuant to Section 1.10 of the PFI Stock Purchase Agreement (the "FPA Registration Rights Agreement");
(E) the PFI Stock Purchase Agreement;
(F) each of the guaranties to be delivered by FPA, PFI Family First Medical Centers, Inc. ("Family First"), Physicians Medical Group of Florida, Inc. ("Medical Group") and PCA Family Pharmacy, Inc. ("Pharmacy") pursuant to Section 1.13 of the PFI Stock Purchase Agreement or otherwise under Section 1 of the PFI Stock Purchase Agreement (the "FPA Guaranties");
(G) each of the pledge and security agreements to be delivered by FPA and PFI pursuant to Section 1.11 of the PFI Stock Purchase Agreement (the "FPA Pledge Agreements"); and
(H) each of the asset security agreements to be delivered by PFI, Family First, Medical Group and Pharmacy pursuant to Section 1.12 of the PFI Stock Purchase Agreement (the "FPA Security Agreements"; together with the FPA Note, the FPA Warrants, the FPA Registration Rights Agreement, the FPA Guaranties, the FPA Pledge Agreements and the PFI Stock Purchase Agreement, in each case as amended, supplemented or otherwise modified from time to time, being the "FPA Documents").
(iv) To The executed original of the extent reasonably requested FPA Note (certified by the Arrangers Borrower to be the only such original), duly endorsed in writing not less than five blank.
(5vi) Business Days prior The certificates evidencing the FPA Closing Stock, duly endorsed in blank.
(vii) The executed original of each of the FPA Warrants, duly endorsed in blank.
(viii) The executed original of each of the FPA Guaranties (certified by the Borrower to be the only such originals).
(ix) The executed original of each of the FPA Pledge Agreements (certified by the Borrower to be the only such originals), together with all certificates and instruments evidencing the shares and indebtedness pledged thereunder, in each case duly endorsed in blank.
(x) The executed original of each of the FPA Security Agreements (certified by the Borrower to be the only such originals), together, in the case of each such FPA Security Agreement, with:
(A) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the date of such FPA Security Agreement under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the security interests created under such FPA Security Agreement and covering the collateral described in such FPA Security Agreement or other evidence satisfactory to the Agent that arrangements have been made with a reputable filing service for such filing of such financing statements;
(B) acknowledgment copies or stamped receipt copies of proper assignments, in favor of the Agent, of each of the financing statements referred to in subsection (A) above, duly filed on or before the Fourth Amendment No. 3 Effective Date, Date under applicable the Administrative Agent shall have received, prior Uniform Commercial Code or other evidence satisfactory to the effectiveness Agent that arrangements have been made with a reputable filing service for such filing of this Amendmentsuch assignments; and
(C) evidence of the completion of all other recordings and filings of or with respect to such FPA Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the security interests created thereby.
(xi) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Fourth Amendment Effective Date under the Uniform Commercial Code of all documentation jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the security interests created under the PFI Consideration Pledge Agreement and covering the Collateral described therein or other information evidence satisfactory to the Agent that arrangements have been made with a reputable filing service for such filing of such financing statements, together with evidence of the completion of all other recordings and filings of or with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” PFI Consideration Pledge Agreement that the Agent may deem necessary or desirable in order to perfect and anti-money laundering rules and regulations, including without limitation protect the PATRIOT ActLiens created thereby.
(jxii) The Administrative A Consent Agreement, in form and substance satisfactory to the Agent shall have received (the "PFI Consideration Consent Agreement"), duly executed by each of FPA, PFI, Family First, Medical Group, Pharmacy and the Borrower, consenting to the PFI Consideration Pledge Agreement and to the grant provided for therein of security interests, pledges and assignments of the account Borrower's interests in property and obligations of each Lender (such parties other than GECC, the Borrower and agreeing to such other matters as are provided for in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective DatePFI Collateral Consent Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Physician Corporation of America /De/)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each hereof upon satisfaction of the following conditions shall have been satisfiedconditions:
(a) The Administrative Agent's receipt of five (5) copies of this Amendment No. 2 duly executed by the Company and Agent;
(b) Agent shall have received payment of an amendment fee in the amount of $30,000, which fee shall be due and payable and earned in full on the effective date of this Amendment, Amendment No. 2 and shall not be subject to rebate or proration for any reason;
(c) Agent shall have received an amendment to the Factoring Termination Agreement duly executed by Company and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders in form and (G) the Administrative substance satisfactory to Agent.;
(bd) The Administrative Agent's receipt of the Second Amended and Restated Term Loan Promissory Note and Second Amended and Restated Revolving Credit Note, which have been executed by the Company in the form of Exhibit A and Exhibit B attached hereto;
(e) Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date copy of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, resolutions in form and substance reasonably satisfactory to Agent, of the Administrative Agent.Sole Member of CS Acquisition authorizing (1) the execution, delivery and performance of this Amendment No. 2, (2) the execution, delivery and performance of the Factoring Agreement dated as of January 15, 2004 between CS Acquisition and CIT and (3) the granting by CS Acquisition of the Liens upon the CS Acquisition Collateral, certified by the Secretary or an Assistant Secretary of CS Acquisition, as of the date of this Amendment No. 2; and, such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(df) The Administrative Agent shall have received a copy of the Articles of Organization and Operating Agreement of CS Acquisition, and all amendments thereto, such Articles of Organization shall have been certified by the Secretary of State or other appropriate official of its jurisdiction of formation;
(g) Agent shall have received good standing certificates for CS Acquisition dated not more than thirty (30) days prior to the date of this Amendment No. 2, issued by the Secretary of State or other appropriate official of CS Acquisition's jurisdiction of formation;
(h) Agent shall have received in form and substance satisfactory to Agent, updated Certificates of Insurance which add CS Acquisition as an insured party and cover the CS Acquisition's assets, wheresoever located and in amounts and on terms acceptable to Agent and updated Loss Payee Policy Endorsements naming Agent as an additional insured;
(i) Agent shall have received the executed opinion of counsel from Xxxxxxx Berlin Shereff Xxxxxxxx LLP in form and substance satisfactory to Agent, which shall cover such matters incident to the transactions contemplated by this Amendment No. 2 and the Financing Agreement, as amended;
(j) Agent shall have received, in form and substance satisfactory to Agent, executed copies of the Asset Purchase Agreement and all agreements, instruments and documents executed in connection with each of the foregoing;
(k) Each document (including, without limitation, any Uniform Commercial Code financing statement) required by this Amendment No. 2 or under law or reasonably requested by Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected security interest in or lien upon the CS Acquisition Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto; and
(l) Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Partyother certificates, certificates of resolutions or other actioninstruments, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party documents and agreements as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed be required by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) , each of which shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior be in form and substance satisfactory to the Amendment No. 3 Effective DateAgent and its counsel.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The obligations of the 2020 Incremental Term Lenders to make 2020 Incremental Term Loans under the Amended Credit Agreement, and the amendments to the Credit Agreement contained in Section 1 hereof, shall become effective as of the first date (such date being referred to as the “Second Amendment No. 3 Effective Date”, ) on which date is August 8, 2014) when each of the following conditions shall have been satisfied:satisfied (or waived by the 2020 Incremental Term Lenders):
(a) The Administrative Agent and the 2020 Incremental Term Lenders shall have received counterparts of (i) this Amendment, duly Amendment executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) Administrative Agent and the 2020 Incremental Term B-2 Lender, (F) the Required Lenders and (Gii) the Administrative Agent.Guarantor Consent and Reaffirmation attached hereto as Exhibit A (the “Guarantor Consent”) executed by Holdings and each Subsidiary Guarantor (collectively, the “Guarantors” and each, a “Guarantor”);
(b) The Administrative Agent on behalf of itself and the 2020 Incremental Term Lenders shall have received a Committed Loan Notice with respect customary legal opinion from (i) Ropes & Gxxx LLP, counsel to the Incremental Term B-2 Loans not later than 5:30 p.m. Loan Parties and (New York, New York timeii) on the Business Day prior each local counsel to the requested date of the Amendment No. 3 Effective Date.Loan Parties listed on Schedule 4(b) to this Amendment;
(c) The Administrative Agent on behalf of itself and the 2020 Incremental Term Lenders shall have received, on behalf of itselfwith respect to each Loan Party, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan PartyParty (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates and/or or other certificates of Responsible Officers of each Loan Party as certifying true and complete copies of the Administrative Agent may reasonably require Organizational Documents attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Guarantor Consent;
(yd) The Administrative Agent and the 2020 Incremental Term Lenders shall have received a certificate, dated as certificate of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of Borrower certifying that the conditions set forth in Sections 4(fclauses (f) and (g).) of this Section 4 have been satisfied;
(e) Payment of all reasonable fees and expenses due to the The Administrative Agent and the Arrangers 2020 Incremental Term Lenders shall have received a solvency certificate from a Responsible Officer of the Borrower (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and after giving effect to the extent invoiced at least two Business Days prior transactions contemplated by this Amendment) based on and consistent with the form attached to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.as Exhibit K;
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V III of the Credit Agreement and any other Loan Document Section 5 of this Amendment shall be true and correct in all material respects on and as of the date hereofSecond Amendment Effective Date; provided that, in the case of any representation and warranty which expressly relates to the extent that a specific date or period, such representations representation and warranties specifically refer to an earlier date, they warranty shall be true and correct in all material respects as of such earlier datethe respective date or for the respective period, as the case may be; provided, further, that, if any representation and warranty that is qualified as by or subject to a “Material Adverse Effectmaterial adverse effect”, “material adverse change” or similar language term or qualification, such representation and warranty shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.;
(g) No Event of Default shall exist, exist immediately prior to or would result from the effectiveness of after giving effect to this Amendment or from and the application making of the proceeds thereof.2020 Incremental Term Loans;
(h) The Administrative Agent (or its counsel) on behalf of itself and the 2020 Incremental Term Lenders shall have received a Note executed by the Borrower for each Lender that requests such a Note Borrowing Request no later than 2:00 p.m. (New York time) at least two three Business Days prior to the Amendment No. 3 Effective Date.requested date of the Borrowing (or any such later date the Administrative Agent may agree) in respect of the 2020 Incremental Term Loans;
(i) To The Borrower shall have paid all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Arrangers (as defined in the engagement letter, dated as October 26, 2020 (the “Engagement Letter”), by and among the Borrower, BofA Securities, Inc. (“BofA Securities”), Nomura Securities International, Inc. (“Nomura”), Jefferies Finance LLC and Mxxxxx Sxxxxxx Senior Funding, Inc. (including, without limitation, the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, to the extent reasonably requested provided for in Section 9.03 of the Credit Agreement or Section 5 of the Engagement Letter) and the 2020 Incremental Term Lenders in connection with this Amendment invoiced at least three (3) Business Days (unless otherwise agreed by the Arrangers in writing not less than five Borrower) prior to the Second Amendment Effective Date;
(5j) The Borrower shall have paid all fees required to be paid pursuant to the fee letter, dated as of October 20, 2020, by and between the Borrower, BofA Securities and Nomura (the “Fee Letter”); and
(k) The Administrative Agent shall have received (i) at least two (2) Business Days prior to the Second Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, Date all documentation and other information with respect to about the Loan Parties Borrower and the Guarantors required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, regulations (including without limitation the USA PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page has been reasonably requested in writing at least ten (10) Business Days prior to this the Second Amendment Effective Date and (ii) one (1) Business Day prior to the Second Amendment Effective Date all documentation and other information about the Borrower required by regulatory authorities under 31 C.F.R. § 1010.230 (the “ConsentBeneficial Ownership Regulation”) prior to 5:00 PM that has been reasonably requested in writing at least ten (New York City time10) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Days prior to the Second Amendment NoEffective Date. 3 For purposes of determining compliance with the conditions specified in this Section 4, the 2020 Incremental Term Lenders shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the 2020 Incremental Term Lenders from and after the making by the 2020 Incremental Term Lenders of the 2020 Incremental Term Loans pursuant to Section 2.01(b) of the Amended Credit Agreement. The 2020 Incremental Term Lenders and the Borrower shall promptly notify the Administrative Agent of the occurrence of the Second Amendment Effective Date.
Appears in 1 contract
Samples: First Lien Credit Agreement (Hayward Holdings, Inc.)
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 4 Effective Date”, which date ) is August 8, 2014subject to the conditions precedent that (i) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment, Amendment duly executed and delivered by (A) the Borrower, (B) Holdingsthe Required Lenders, (C) the Guarantors, (D) the Incremental Term B-2 each Increasing Lender, (F) the Required Lenders each New Lender and (G) the Administrative Agent.
, (bii) The the Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date counterparts of the Amendment No. 3 Effective Date.
Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Subsidiary Guarantors, (ciii) The the Administrative Agent shall have receivedreceived such instruments and documents as the Administrative Agent shall reasonably request, on behalf including a written opinion of itselfthe Borrower’s counsel, the First Lien Collateral Agent DLA Piper LLP (US), in form and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed substance reasonably acceptable to the Administrative Agent, (iv) the First Lien Collateral Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Amendment No. 4 Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel for the Administrative Agent) required to be reimbursed or paid by the Borrower in connection with this Amendment and under the Loan Documents, (v) the Administrative Agent shall (x) have received counterparts from the Borrower and the Lenders“Required Holders” (under and as defined in the NPPSA (as defined below)) of an amendment to that certain Note Purchase and Private Shelf Agreement, dated as of June 1, 2010, by and among the Borrower and the holders of Notes party thereto from time to time (the “NPPSA”), which amendment to the NPPSA modifies the definition of “Consolidated EBITDA” under the NPPSA in the same manner as this Amendment modifies the definition of Consolidated EBITDA under the Credit Agreement and is otherwise in form and substance reasonably satisfactory to the Administrative Agent.
Agent and (dy) The be reasonably satisfied that such amendment becomes effective concurrently with the effectiveness of this Amendment and (vi) the Administrative Agent shall have received made such reallocations of each Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement (xincluding the New Lenders) certificates as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of good standing (the Revolving Credit Exposure under the Credit Agreement as amended hereby, which such reallocation, to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as that the Administrative Agent may reasonably require evidencing determines in its reasonable discretion such reallocation to be necessary, the identityAdministrative Agent agrees to do on the date hereof. The Borrower hereby agrees to compensate each Lender for any and all losses, authority costs and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer expenses incurred by such Lender in connection with this Amendment the sale and (y) a certificate, dated as assignment of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid any Eurocurrency Loans on the Amendment No. 3 4 Effective Date and to the extent invoiced at least two Business Days prior to reallocation described in clause (vi) above, in each case on the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, terms and in the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained manner set forth in Article V Section 2.16 of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesAgreement.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (such date being referred to as the “First Amendment No. 3 Effective Date”, which date is August 8, 2014) when each shall be subject to Agent’s receipt of the following documents, in form and substance satisfactory to Agent, or, as applicable, the following conditions shall have been satisfiedbeing met:
(a) The Administrative Agent shall have received this Amendment, duly executed by Agent, Xxxxxx and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.Xxxxxxxx;
(b) The Administrative Agent Borrower shall have received a Committed Loan Notice paid (i) the First Amendment Facility Fee, (ii) all invoiced costs and expenses then due in accordance with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. Section 8(d), and (New Yorkiii) all other fees, New York time) on the Business Day prior to the requested date costs and expenses, if any, due and payable as of the Amendment No. 3 Effective Date.date hereof under the Loan Agreement;
(c) The Administrative Agent Borrower shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, submitted an opinion from Ropes & Xxxx LLP, New York counsel Advance Request for the Loan PartiesTranche 2 Advance;
(d) copy of resolutions of Xxxxxxxx’s Board of Directors, dated certified by an officer of Xxxxxxxx, evidencing (i) approval of this Amendment, (ii) authorizing a specified person or persons to execute this Amendment on its behalf, and (iii) acknowledging that the Board of Directors are acting for a proper purpose and that this Amendment No. 3 Effective Date is in the best interests of Borrower and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, for its commercial benefit;
(e) a legal opinion of Xxxxxxxx’s counsel in form and substance reasonably satisfactory acceptable to the Administrative Agent.;
(df) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificatecertified copies, dated as of a recent date, of searches for financing statements filed in the central filing office of the State of Delaware, accompanied by written evidence (including any UCC termination statements) that the Liens on any Collateral indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the Tranche 2 Advance, will be terminated or released;
(g) on the First Amendment No. 3 Effective Date, signed by a Responsible Officer immediately after giving effect to the amendments of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Loan Agreement contemplated hereby:
(ei) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document Section 5 shall be true and correct in all material respects on and as of the date hereofFirst Amendment Effective Date as though made on and as of such date; provided thatprovided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; provided, further, that to the extent that such representations and warranties specifically refer by their terms expressly relate only to an earlier date, they a prior date such representations and warranties shall be true and correct in all material respects as of such earlier prior date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.and
(gii) No Default shall exist, there exist no Defaults or would result from the effectiveness Events of this Amendment or from the application of the proceeds thereof.Default; and
(h) The Administrative such other documents or evidence as Agent (or its counsel) shall have received a Note executed by may reasonably request to effectuate the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness terms of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Loan and Security Agreement (X4 Pharmaceuticals, Inc)
Conditions of Effectiveness. This Amendment The amendment and restatement of the Existing Credit Agreement pursuant to Section 1 of this Agreement shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Restatement Effective Date”, ) on which date is August 8, 2014) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received this Amendmentfrom each of the Borrowers, duly executed and delivered by (A) the BorrowerLenders, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Departing Lenders and (G) the Existing Swing Line Bank either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative AgentAgent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. favorable written opinions (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersLenders (as defined in the Restated Credit Agreement) and dated the Restatement Effective Date) of (i) the U.S. counsels to the Company and the Subsidiary Guarantors, (ii) the Irish counsel to the Subsidiary Borrower and (iii) the foreign local counsel of each Foreign Subsidiary Guarantor, in each case in form and substance reasonably satisfactory to the Administrative AgentAgent and covering such matters relating to the Loan Parties, the Loan Documents, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsel to deliver such opinion.
(c) The Lenders shall have received (i) satisfactory audited consolidated financial statements of the Company for the two most recent fiscal years ended prior to the Restatement Effective Date as to which such financial statements are available, (ii) satisfactory unaudited interim consolidated financial statements of the Company for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are publicly available and (iii) satisfactory financial statement projections through and including the Company’s 2020 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in preparing such projections).
(d) The Administrative Agent shall have received such (x) documents and certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent or its counsel may reasonably require evidencing request, including without limitation documents and certificates relating to the identityorganization, authority existence and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as good standing of the Amendment No. 3 Effective Date, signed by a Responsible Officer Loan Parties and the authorization of this Agreement (including the Borrower, confirming satisfaction of the conditions set forth in Sections 4(fRestated Credit Agreement) and the transactions contemplated hereby and any other legal matters relating to the Loan Parties, the Loan Documents or this Agreement (g).
(eincluding the Restated Credit Agreement) Payment of and the transactions contemplated hereby, all reasonable fees in form and expenses due substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the Arrangers (list of closing documents attached as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and Exhibit E to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Restated Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective DateAgreement.
(fe) The representations and warranties of the Borrower and each other Loan Party contained Parties set forth in Article V of the Credit Agreement and any other Loan Document Documents shall be true and correct in all material respects on and as of the date hereof; provided that, Restatement Effective Date (except to the extent that such representations any representation and warranties specifically refer warranty expressly relates to an earlier date, they in which case such representation and warranty shall be true and correct in all material respects as of such earlier date; provided), furtherno Unmatured Default or Default shall have occurred and be continuing as of the Restatement Effective Date, thatand the Administrative Agent shall have received a certificate, any representation dated as of the Restatement Effective Date and warranty signed by the president, a vice president or a financial officer of the Company, confirming the foregoing.
(f) The Administrative Agent shall have received a certificate, dated as of the Restatement Effective Date, of a Designated Financial Officer of the Company demonstrating to the satisfaction of the Administrative Agent (i) a computation of Collateral Value Amount as of the most recently completed fiscal quarter for which financial statements are available and (ii) that is qualified the Collateral Value Amount as to “Material Adverse Effect” or similar language of such date shall be true greater than the Facilities Obligations Amount on the Restatement Effective Date (after giving effect to the transactions contemplated hereby and correct in all respects on such respective datesby the Restated Credit Agreement).
(g) No Default Liens creating a first priority security interest in the Collateral shall exist, or would result from have been granted and/or reaffirmed (as necessary) and perfected to the effectiveness of this Amendment or from the application reasonable satisfaction of the proceeds thereofAdministrative Agent.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by evidence reasonably satisfactory to it that all governmental and third party approvals necessary in connection with the Borrower for each Lender that requests such a Note at least two Business Days Restated Credit Agreement, the transactions contemplated thereby and the continuing operations of the Company and its Subsidiaries have been obtained and are in full force and effect.
(x) The Administrative Agent shall have received (i) all fees and other amounts due and payable on or prior to the Amendment No. 3 Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company under the Loan Documents and (ii) all Swing Line Loans and all accrued and unpaid interest and fees under the Existing Credit Agreement, and (y) each Departing Lender shall have received payment in full of all Obligations owing to it under the Existing Credit Agreement as contemplated by Section 2 hereof.
(ij) To Upon the extent reasonably requested by occurrence of the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Restatement Effective Date, the Administrative Agent shall have received, prior to notify the effectiveness Company and the Lenders (both under the Existing Credit Agreement and the Restated Credit Agreement) of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this First Amendment shall become effective as of (including the first date amendments contained in Section 1 and agreements contained in Section 2) are subject to the satisfaction (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014or waiver) when each of the following conditions shall have been satisfied:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) The This First Amendment shall have been duly executed by the Borrowers, Holdings, the Subsidiary Guarantors and the Administrative Agent shall have received this Amendment(which may include a copy transmitted by facsimile or other electronic method), duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) to the Administrative Agent, and the Lenders under the Credit Agreement consisting of Lenders holding more than 50% of the aggregate outstanding principal amount of the Initial Term B Loans immediately prior to the First Amendment Effective Date.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect certificate signed by a Responsible Officer of the Top Borrower as to the Incremental Term B-2 Loans not later than 5:30 p.m. matters set forth in paragraphs (New York, New York timed) on the Business Day prior to the requested date and (e) of the Amendment No. 3 Effective Date.this Section 3;
(c) The Administrative Agent shall have received, on behalf received (i) a certificate of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the each Loan PartiesParty, dated the First Amendment No. 3 Effective Date and addressed to executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify that either (x) (i) attached thereto is a true and complete copy of the
(i) attached thereto is a true and correct copy of the Administrative Agentby-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Closing Date and such by-laws or operating, management, partnership or similar agreement are in full force and effect or (ii) if applicable, the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto delivered on the Closing Date have not been amended, repealed, modified or restated and are in full force and effect and (z) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution and delivery of this First Lien Collateral Agent Amendment and any related Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (B) identify by name and title and bear the Lenderssignatures of the officers, in form managers, directors or authorized signatories of such Loan Party authorized to sign this First Amendment or any of such other Loan Documents to which such Loan Party is a party on the Closing Date and substance reasonably satisfactory to (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the Administrative Agentrelevant authority of its jurisdiction of organization.
(d) The Administrative Agent shall have received such (x) certificates No Default or Event of good standing (Default has occurred and is continuing both before and immediately after giving effect to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).transactions contemplated hereby;
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrowers and each of the Guarantors set forth in Section 4 of this First Amendment are true and correct;
(f) All fees and expenses required to be paid in connection with this First Amendment or pursuant to that certain engagement letter, dated as of March 28, 2017 (the “Engagement Letter”), by and among the Top Borrower and each other Loan Party contained in Article V of the Credit Agreement Repricing Arrangers (as defined below) and any other Loan Document fee letter entered into by the Top Borrower and any party thereto shall have been paid in full in cash or will be true paid in full in cash on the First Amendment Effective Date, including, without limitation, all reasonable and correct documented out-of-pocket expenses incurred by the Repricing Arrangers, the Administrative Agent and their respective Affiliates in all material respects on connection with the execution and as delivery of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesthis First Amendment.
(g) No Default The Replacement Lender, if any, shall exist, or would result from have executed and delivered the effectiveness of this Amendment or from Master Assignment contemplated by Section 2 above and all conditions to the application consummation of the proceeds thereofassignments in accordance with Section 2 above shall have been satisfied and such assignments shall have been consummated.
(h) The Administrative Agent (or its counsel) Borrowers shall have received a Note executed by have, substantially concurrently with the Borrower for effectiveness of this First Amendment, paid to each Non-Consenting Term Lender that requests all accrued interest, fees and other amounts payable to such a Note at least two Business Days prior Non-Consenting Term Lender under any Loan Document with respect to the Amendment No. 3 Effective Date.
Initial Term B Loans assigned by such Non-Consenting Term Lender under Section 2(c) above (i) To other than principal and all other amounts paid to such Non-Consenting Term Lender under Section 2 above), if any, then due and owing to such Non-Consenting Term Lender under the extent reasonably requested by Credit Agreement and the Arrangers in writing not less than five other Loan Documents (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, immediately prior to the effectiveness of this First Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act).
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Waiver and Eighth Amendatory Agreement shall be operative as of the date hereof but shall become effective as when, and only when, the Agent shall have received (x) full and final payment of a $550,000 fee (which shall be in substitution for, and in full satisfaction of, payment of the first date $400,000 fee referenced in Section 2.06(c) of the Credit Agreement); (y) counterparts of this Waiver and Eighth Amendatory Agreement executed by the Borrower and the Lenders or, as to any of said Lenders, advice satisfactory to the Agent that such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014Lender has executed this Waiver and Eighth Amendatory Agreement and (z) when each all of the following conditions shall have been satisfieddocuments, each document (unless otherwise indicated) being dated the date hereof, in form and substance satisfactory to the Agent:
(a) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this AmendmentWaiver and Eighth Amendatory Agreement, duly executed and the other documents to be delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.hereunder;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, certificate signed by a Responsible Officer duly authorized officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Borrower stating that:
(ei) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained as set forth in Article V IV of the Credit Agreement and in any other documents delivered therewith, including the Loan Document shall be Documents, are true and correct in all material respects on and as of the date hereof; provided that, to the extent that of such certificate as though made on and as of such date (except insofar as such representations and warranties specifically refer relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a prior date, they shall be true ),
(ii) the representations and warranties contained in Section 4 hereof are correct in all material respects on and as of the date of such certificate as though made on and as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.and
(giii) No after giving effect to this Waiver and Eighth Amendatory Agreement, no Default shall exist, or would result from the effectiveness Event of this Amendment or from the application of the proceeds thereof.Default has occurred and is continuing;
(hc) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
certified copies of (i) To the extent reasonably requested by resolutions of the Arrangers in writing not less than five Board of Directors of the Borrower and of the Guarantor approving this Waiver and Eighth Amendatory Agreement and (5ii) Business Days prior to the Amendment No. 3 Effective Dateall documents evidencing other necessary corporate action and governmental approvals, the Administrative Agent shall have receivedif any, prior to the effectiveness of this Amendment, all documentation and other information with respect to this Waiver and Eighth Amendatory Agreement and the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.matters contemplated hereby;
(jd) The Administrative Agent shall have received for a favorable opinion of Kaufman & Canoles, couxxxx xxr txx Xxxxower and the account of each Lender (other than GECCGuarantor, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior a form reasonably acceptable to the Amendment No. 3 Effective DateAgent and Lenders; and
(e) an amendment to the existing deeds of trust in favor of the Agent, together with endorsements to the title insurance policies in force with respect to such deeds of trust.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of on the first date hereof (such date being referred to as the “Amendment No. 3 6 Effective Date”, which date is August 8, 2014) when each upon the satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received counterparts to this Amendment, duly executed and delivered by (A) each of the Borrower, (B) Holdingsthe Lenders, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent., the Issuing Bank and the Swingline Lender;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect favorable written opinions (addressed to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on Administrative Agent and the Business Day prior to the requested date of Lenders and dated the Amendment No. 3 6 Effective Date.) of (i) Sidley Austin LLP, counsel for the Loan Parties, and (ii) in-house legal counsel for the Loan Parties, in each case, covering such matters relating to the Loan Parties and this Amendment as the Administrative Agent shall reasonably request;
(c) The Administrative Agent shall have receivedreceived certificates of the secretary or an assistant secretary of each Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of itselfsuch Loan Party), certifying as to (i) specimen signatures of the First Lien Collateral Agent persons authorized to execute Loan Documents to which such Loan Party is a party, (ii) copies of resolutions of the board of directors or other appropriate governing body of such Loan Party authorizing the execution and delivery of this Amendment and (iii) copies of such Loan Party’s constituent organizational documents or a statement that such constituent organizational documents have not changed since the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the time each Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, Party last provided a certification in form and substance reasonably satisfactory to the Administrative Agent.respect thereof;
(d) The Administrative Agent shall have received such (x) certificates received, for each Loan Party, a certificate of good standing (or the equivalent) from the appropriate governing agency of such Loan Party’s jurisdiction of organization (to the extent the concept of good standing is applicable in such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (gjurisdiction).;
(e) Payment of all reasonable fees and expenses due to the The Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower)shall have received, in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two three Business Days prior to the Amendment No. 3 6 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information regarding the Borrower requested in connection with respect to the Loan Parties required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Patriot Act., to the extent requested in writing of the Borrower at least 10 Business Days prior to the Amendment No. 6 Effective Date; and
(jf) The Administrative Agent shall have received payment of the Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the account of each Lender (other than GECC, Administrative Agent) in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to connection with this Amendment and any other Loan Document, and for which invoices have been presented at least one (the “Consent”1) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Day prior to the Amendment No. 3 6 Effective Date, in each case, to the extent payment is required by Section 9.03(a) of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Joinder shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each hereof upon satisfaction of the following conditions conditions. Agent and Lenders shall have been satisfiedreceived:
(a) The Administrative Agent shall have received a copy of this Amendment, Joinder duly executed by Agent, Lenders, the Credit Parties and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.New Subsidiaries;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkSecretary’s Certificate and resolutions, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, all in form and substance reasonably satisfactory to Required Lenders, of the Administrative Agent.board of directors or comparable governing body of each New Subsidiary authorizing (1) the execution, delivery and performance of this Joinder and (2) the granting by such New Subsidiary of the Liens created by the Credit Agreement, and such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(c) a copy of the certificate of incorporation and by-laws (or other comparable governing documents) of each New Subsidiary, and all amendments thereto, such certificate shall have been certified by the Secretary of State or other appropriate official of its jurisdiction of formation;
(d) The Administrative Agent good standing certificates for each New Subsidiary dated not more than thirty (30) days prior to the date of this Joinder, issued by the Secretary of State or other appropriate official of such New Subsidiary’s jurisdiction of formation and each jurisdiction where the conduct of such New Subsidiary’s business activities or the ownership of their respective properties necessitates qualification to the extent not maintaining such qualification could not reasonably be expected to have a Material Adverse Effect;
(e) UCC, tax and judgment (or similar foreign) lien searches with respect to the New Subsidiaries in such jurisdictions as Required Lenders shall have received require, and the results of such searches shall be satisfactory to Required Lenders;
(f) an executed opinion of counsel in form and substance reasonably satisfactory to Required Lenders, which shall cover such matters which were opined upon in the opinion letter furnished with respect to the Credit Parties on the Closing Date, as such matters apply to each New Subsidiary;
(g) a perfection certificate completed and duly executed by the New Subsidiaries, which shall be in form and substance comparable to the Perfection Certificate completed and furnished by the Credit Parties on the Closing Date;
(h) to the extent necessary, an updated set of schedules to any Joined Document, reflecting any additional disclosures required on account of the New Subsidiaries; and
(x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of evidencing each Loan PartyNew Subsidiary’s liability and property insurance policies, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificatean endorsement to each New Subsidiary’s property insurance naming Agent as lender loss payee, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g)z) an endorsement to each New Subsidiary’s liability insurance naming Agent as additional insured.
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Term Loan Credit and Security Agreement (Hudson Technologies Inc /Ny)
Conditions of Effectiveness. This Amendment The Effective Date of this Agreement shall become effective as of be on the first date (such date being referred to as the “Amendment No. 3 Effective Date”, on which date is August 8, 2014) when each all of the following conditions shall have been satisfied:
(A) the Lender shall be satisfied in all material respects (a) The Administrative Agent with any material modifications or additions to the terms of the Public Offering Documents from the form of such documents delivered to the Lender prior to its execution of this Agreement, and (b) that all material conditions precedent to the Public Offering have been satisfied or waived with the prior written consent of the Lender;
(B) no law, regulation, order, judgment or decree of any Governmental Authority shall, and the Lender shall not have received any notice that litigation is pending or threatened which is likely to, (A) enjoin, prohibit or restrain the making of an Advance hereunder or (B) impose or result in the imposition of a Material Adverse Effect;
(C) all conditions precedent set forth in the Commitment Letter shall have received been satisfied;
(D) all due diligence materials requested by the Lender from the Borrower shall have been delivered to the Lender and such due diligence materials shall be in form and substance satisfactory to the Lender;
(E) the Borrower has furnished to the Lender each of the following, all in form and substance satisfactory to the Lender:
(i) this AmendmentAgreement, duly executed and delivered by the Borrower;
(Aii) the BorrowerNote, duly executed by the Borrower in favor of the Lender;
(B) Holdings, (Ciii) the GuarantorsSubordinated Debt Documents;
(iv) Amendment to the Speedway Pledge which reflects a pledge by Sonic Financial Corporation of [_______] shares of Speedway Motorsports, Inc., which such amount is equal to three times the difference between $70,000,000 and Net Cash Proceeds of the Public Offering;
(Dv) a Dealership Guaranty executed by each Sonic Dealership which has not heretofore provided a Dealership Guaranty to the Incremental Term B-2 Lender, (F) it being understood that if such Sonic Dealership is an Unrestricted Dealership, such Dealership Guaranty will be substantially in the Required Lenders form of the Dealership Guaranty attached hereto as Exhibit C-1, and (G) if such Sonic Dealership is a Restricted Dealership, such Dealership Guaranty will be substantially in the Administrative Agent.form of the Dealership Guaranty attached hereto as Exhibit C-2;
(bvi) The Administrative Agent shall have received a Committed Loan Notice Dealership Security Agreement executed by each Sonic Dealership which has not heretofore provided a Dealership Security Agreement to the Lender, it being understood that if such Sonic Dealership is an Unrestricted Dealership, such Dealership Security Agreement will be substantially in the form of the Dealership Security Agreement attached hereto as Exhibit D-1, and if such Sonic Dealership is a Restricted Dealership, such Dealership Security Agreement will be substantially in the form of the Dealership Security Agreement attached hereto as Exhibit D-2;
(vii) with respect to each Dealership Security Agreement delivered by a Sonic Dealership in connection with the Incremental Term B-2 Loans Bridge Facility, an amendment to such Dealership Security Agreement attaching a revised exhibit thereto, which such revised exhibit shall reflect only Permitted Existing Liens;
(viii) an amendment of each of the Borrower Pledges dated October 15, 1997 and the Subsidiary Holding Company Pledge attaching a revised exhibit thereto, which such revised exhibit shall reflect a pledge of any Sonic Dealership not later heretofore pledged, together with, for each corporate entity so acquired, a stock certificate evidencing the issued and outstanding pledged stock and undated stock powers executed in blank;
(ix) a Subsidiary Holding Company Pledge dated the date hereof, pursuant to which certain Subsidiary Holding Companies pledge their Capital Stock in Sonic Peachtree Industrial Blvd., L.P. (the "Partnership") , together with a pledge from the Partnership of its limited liability company interests in Sonic Automotive 5260 Peachtree Industrial Blvd., LLC;
(x) Xx xxx xxxxxx xxx Xxxxx Xxxxxxxxxx xxx any Indebtedness other than 5:30 p.m. Permitted Indebtedness, pay-out letters, releases and UCC-3 Termination Statements, where applicable, from all third-party creditors releasing all Liens securing any such Indebtedness, including without limitation, Indebtedness owed by the Borrower to NationsBank in connection with the Lake Norman Acquisition;
(New York, New York timexi) Certificates of good stanxxxx xor the Borrower and each of the Dealership Guarantors from its jurisdiction of incorporation and each other jurisdiction where the nature of its business requires it to be qualified as a foreign corporation;
(xii) a Secretary's Certificate from the Borrower and each Sonic Dealership acquired by the Borrower on the Business Day or prior to the requested date hereof, provided, however that the Borrower and any Sonic Dealership which provided a Secretary's Certificate as part of the Amendment No. 3 Bridge Facility may deliver a bring-down certificate of such previously delivered Secretary's Certificate, certifying that as of October 15, 1997, there has been no change to any of the information provided therein and, in the case of any of such Sonic Dealerships, that the representations and warranties contained in any Collateral Document delivered by such Sonic Dealership in connection with the Bridge Facility continues to be true and correct with full force and effect as if made on the Effective Date.
(cxiii) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersA certificate, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to Lender, signed by the extent such concept exists) from the applicable secretary of state chief financial officer of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated Borrower stating that as of the Amendment No. 3 Effective Date, signed by a Responsible Officer no Event of Default or Unmatured Default has occurred and is continuing and setting forth the calculation of the Borrower, confirming satisfaction Sonic Group's Scaled Assets as of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent Effective Date, and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct in all material respects with full force and effect as if made on and as the Effective Date;
(xiv) A written opinion of the date hereof; provided thatBorrower's and Dealership Guarantors' counsel, addressed to the extent that such representations Lender, in form and warranties specifically refer substance satisfactory to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.the Lender;
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(ixv) To the extent reasonably requested by not included in the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Dateforegoing, the Administrative Agent shall have receiveddocuments, prior to instruments and agreements set forth on the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.closing list attached as Exhibit E hereto; and
(jxvi) The Administrative Agent shall Such other documents as the Lender or its counsel may have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Datereasonably requested.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each All of the following conditions shall have been satisfiedsatisfied or waived by the Agent prior to the Effective Date:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the BorrowerLenders shall have completed a due diligence investigation of the Transaction Parties in scope, and with results satisfactory to the Lenders, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe (i) that any information provided by the Transaction Parties to any Lender was or has become misleading, incorrect or incomplete in any material respect, (ii) that, as of the Effective Date, the Transaction Parties would not have good and marketable title to all of the material assets reflected in the information provided by them to any Lender and (iii) that the financing contemplated hereby will have a Material Adverse Effect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Transaction Parties as they shall have requested;
(B) Holdings, all due diligence materials requested by the Lenders from the Borrower shall have been delivered to the Lenders and such due diligence materials shall be in form and substance satisfactory to the Lenders;
(C) the GuarantorsBorrower has furnished to the Agent each of the following, all in form and substance satisfactory to the Agent:
(i) this Agreement, duly executed by the Borrower;
(ii) the Notes duly executed by the Borrower in favor of each Lender;
(iii) the Cross Agreement duly executed by Borrower, each Guarantor and Xxxxxx Everest;
(iv) a Dealership Guaranty, Non Dealership Subsidiary Company Guaranty and/or a Reaffirmation of Guaranty, duly executed by each Dealership and Non Dealership Subsidiary Company, respectively, and a Non Dealership Subsidiary Company Guaranty and/or a Reaffirmation of Guaranty duly executed by Xxxxxx Everest, in each case, to the Agent;
(v) the Borrower Security Agreement, a Dealership Security Agreement and a Non Dealership Subsidiary Company Security Agreement executed by Borrower, each Dealership, each Non Dealership Subsidiary Company and Xxxxxx Everest to the Agent, and a Pledged Account Agreement executed by each Transaction Party and Xxxxxx Everest, together with:
(A) acknowledgment copies of proper financing statements (to be duly filed by the Agent on or before the Effective Date), under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described in the Collateral Documents,
(B) completed requests for information, dated on or before the Effective Date, listing the financing statements referred to in clause (A) above and all other effective financing statements filed in the jurisdictions referred to in clause (A) above that name the relevant Loan Party as debtor, together with copies of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to each relevant Loan Party and Xxxxxx Everest that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) evidence of the Incremental Term B-2 Lenderinsurance required by the terms of the Loan Documents,
(E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, (F) the Required Lenders without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and (G) the Administrative Agentlandlords' and bailees' waiver and consent agreements).
(bvi) The Administrative Agent shall have received a Committed Loan Notice with respect the Borrower Pledge, the Dealership Pledge and the Non Dealership Subsidiary Company Pledge, executed by each of Borrower, each Dealership, each Non Dealership Subsidiary Company and Xxxxxx Everest, respectively, to the Incremental Term B-2 Loans not later than 5:30 p.m. Agent (New Yorkfor the benefit of the Lenders) together, New York timewith (A) on stock certificates evidencing the Business Day prior pledged Equity Interests referred to therein and undated stock powers executed in blank, and (B) acknowledgment copies of Uniform Commercial Code financing statements covering "Investment Property";
(vii) to the requested date of extent the Amendment No. 3 Effective Date.Borrower, any Dealership or Non Dealership Subsidiary Company has any Indebtedness other than Permitted Existing Indebtedness and Liens other than Permitted Existing Liens, pay-out letters, releases and UCC-3 Termination Statements, where applicable, from all third-party creditors releasing all Liens securing any such Indebtedness;
(cviii) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersa certificate, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to Lender, signed by the extent such concept exists) from the applicable secretary of state chief financial officer of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated Borrower stating that as of the Amendment No. 3 Effective Date, signed by a Responsible Officer no Event of the BorrowerDefault or Unmatured Default has occurred and is continuing, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct with full force and effect as if made on the Effective Date;
(ix) to the extent not included in the foregoing, the documents, instruments and agreements set forth on the closing list attached as Exhibit E hereto;
(x) such consents, waivers or other documents as any Lender or its counsel may have reasonably requested;
(xi) the loss payable endorsements referenced in Section 5.2 (G) shall have been delivered to the Agent;
(xii) the Agent shall be satisfied with the corporate and legal structure and capitalization of each Transaction Party, including the terms and conditions of the Charter Documents of each such Person and of each agreement or instrument relating to such structure or capitalization;
(xiii) there shall exist no action, suit, investigation, litigation or proceeding affecting any Transaction Party pending or threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.1 hereto (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby;
(xiv) all material respects on governmental and third party consents and approvals necessary in connection with the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Required Lenders) and shall remain in effect; all applicable waiting periods in connection with the Loan Documents or the consummation of the transactions contemplated thereby shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the reasonable judgment of the Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the consummation of the transactions contemplated thereby or the rights of the Transaction Parties freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them;
(xv) Borrower shall have paid all reasonable accrued fees of the Agent and the Lenders and all reasonable accrued expenses of the Agent and the Lenders (including the reasonable accrued fees and expenses of counsel to the Agent and each Lender); and
(xvi) the Agent shall be satisfied with the amount, parties, terms and conditions and prospects for performance of all Acquisition Documents then in existence with respect to any Pending Acquisition by the Borrower or any of its Subsidiaries which the Borrower reasonably expects, as of the date hereof; provided that, to consummate after the extent that such representations day of the Effective Date; and warranties specifically refer to an earlier date, they the Agent shall be true and correct in satisfied with all material respects as aspects of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesPending Acquisitions.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of is subject to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfied:
precedent that: (a) The the Borrower shall have incurred, after the date hereof but on or before February 28, 2011, at least $400,000,000 in aggregate principal amount of Indebtedness under Section 6.01(f) of the Credit Agreement, such Indebtedness having a maturity of no less than seven (7) years from the date of issuance thereof (the “Specified Issuance”), (b) the Borrower shall have made a prepayment of the outstanding Tranche A Term Loans with the net cash proceeds from the Specified Issuance (after deducting any fees, costs and expenses in connection with this Amendment), with such prepayment to be applied as follows: (i) up to the first $400,000,000 of the net cash proceeds from the Specified Issuance shall be applied to the 2014 Tranche A Term Loans (ratably to the remaining principal installments of the 2014 Tranche A Term Loans) and (ii) any incremental net cash proceeds in excess of $400,000,000 from the Specified Issuance shall be applied first to such Class of Tranche A Term Loans as the Borrower may direct and, to the extent such Class of Term Loans has been repaid in full, thereafter to the other Class of Tranche A Term Loans (in each case ratably to the remaining principal installments of the Tranche A Term Loans being prepaid) and any remaining unapplied net cash proceeds after repayment in full of all Tranche A Term Loans may be retained by the Borrower, (c) the Administrative Agent shall have received counterparts of this Amendment, Amendment duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Pro Rata Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers Consent and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note Reaffirmation attached hereto duly executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to Subsidiary Guarantors, (d) the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in that delivers its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (hereto by such time as is requested by the “Consent”) prior to 5:00 PM (New York City time) on August 5Borrower and the Administrative Agent, 2014, consent fees in an amount amendment fee equal to 0.25% of such Lender’s principal Revolving Commitment and the amount of such Lender’s outstanding Tranche A Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior (after giving effect to the prepayment described in the foregoing clause (b)(i) but, for the avoidance of doubt, giving no effect to the prepayment described in the foregoing clause (b)(ii)) and (e) the Borrower shall have paid, to the extent invoiced, all reasonable out-of-pocket fees and expenses of the Agents and their applicable affiliates (including reasonable attorneys’ fees and expenses) in connection with the preparation, negotiation and execution of this Amendment No. 3 Effective Dateand the other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Dean Foods Co)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (such date being referred to as the “Amendment No. 3 Effective Date”above written when, which date is August 8and only when, 2014) when each of the following conditions shall have been satisfied:satisfied (the “Amendment No. 1 Effective Date”):
(a) The Administrative Agent shall have received counterparts of this AmendmentAmendment executed by the Borrower and the Lenders or, duly as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment and delivered the consent attached hereto (the “Consent”) executed by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders each Guarantor and (G) the Administrative AgentGrantor.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect certificate of the Secretary or Assistant Secretary of the Borrower, in form and substance satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. Administrative Agent, which certificate shall (New York, New York timei) on the Business Day prior certify as to the requested incumbency and signature of the officers of the Borrower executing this Amendment, (ii) have attached to it a true and correct copy of the resolutions of the Board of Directors of the Borrower, which resolutions shall authorize the execution, delivery and performance of this Amendment and (iii) certify that, as of the date of such certificate (which shall not be earlier than the Amendment No. 3 Effective Datedate hereof), none of such resolutions shall have been amended, supplemented, modified, revoked or rescinded.
(c) The Administrative Agent shall have received, on behalf received a certificate of itselfthe Secretary or an Assistant Secretary of the Borrower and each Guarantor and Grantor certifying the names and true signatures of the officers of the Borrower, the First Lien Collateral Agent Guarantors and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Grantors authorized to sign this Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form Consent and substance reasonably satisfactory the other documents to the Administrative Agentbe delivered hereunder.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, A certificate signed by a Responsible Officer duly authorized officer of the Borrower, confirming satisfaction Borrower stating that:
(i) each of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any each other Loan Document shall be is true and correct in all material respects on and as of the date hereof; provided that, as if made on and as of such date, except to the extent that such representations and warranties specifically refer relate to an earlier a specific date, they in which case such representations and warranties shall be true and correct in all material respects as of such earlier specific date; provided, furtherhowever, that, any representation and warranty that is qualified as references in the Credit Agreement to “Material Adverse Effectthis Agreement” or similar language and references in each other Loan Document to the “Credit Agreement” shall be true deemed to refer to the Credit Agreement as amended hereby; and
(ii) no event has occurred and correct in all respects on such respective datesis continuing that constitutes a Default.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(he) The Administrative Agent (or its counsel) Borrower shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior paid to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective DateAdministrative Agent, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECCin accordance with its Pro Rata Share, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount a nonrefundable fee equal to 0.250.50% in respect of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior Commitment.
(f) The Borrower shall have paid all fees and expenses of the Administrative Agent and the Lenders (including all reasonable fees and out-of-pocket costs and expenses of legal counsel to the Amendment No. 3 Effective DateAdministrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Geokinetics Inc)
Conditions of Effectiveness. This Amendment Agreement shall become effective as when the Administrative Agent shall have received counterparts of this Agreement executed by the first date Borrower, all Facility A Lenders, all Facility B Lenders and Lenders (including such date being referred Facility A Lenders and Facility B Lenders) that in the aggregate constitute “Required Lenders” under the Prior Credit Agreement; provided, however, that the Lenders shall not be required to as make any Advance hereunder nor shall the “Amendment No. 3 Effective Date”Issuer be required to issue any Facility Letter of Credit hereunder, which date is August 8, 2014unless and until (i) when the Administrative Agent shall have received the fees provided to be paid pursuant to the Fee Letter and (ii) the Administrative Agent shall have received each of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto, and (except for the Notes) to be in sufficient copies for each Lender), and the conditions specified below shall have been satisfied:
(a) The A Facility A Note payable to the order of the Administrative Agent and a Facility A Note payable to the order of each Facility A Lender that shall have received requested a Facility A Note in accordance with this Amendment, duly executed Agreement; a Facility B Revolver Note and delivered by (A) a Facility B Term Note payable to the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) order of the Administrative AgentAgent and a Facility B Revolver Note and Facility B Term Note payable to the order of each of the Facility B Lenders that shall have requested such Notes in accordance with this Agreement; and a Facility C Note payable to the order of the Administrative Agent and a Facility C Note payable to the order of each of the Facility C Lenders that shall have requested a Facility C Note in accordance with this Agreement.
(b) The Administrative Agent shall have received From each Subsidiary of the Borrower (except for the Mortgage Banking Subsidiaries and the Subsidiaries listed in Schedule VII hereto), a Committed Loan Notice with respect Guaranty executed and delivered as of the Closing Date or, if such Subsidiary has heretofore executed and delivered a Guaranty pursuant to the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkOriginal Credit Agreement or the Prior Credit Agreement, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Datea written instrument executed by such Guarantor ratifying such Guaranties.
(c) The Administrative Agent shall From the Borrower and each of the Guarantors that owns Capital Stock or other equity interests in any Significant Subsidiary and such other Subsidiaries as may be required pursuant to Section 8.01(a)(ii), Pledge Agreements executed and delivered as of the Closing Date or, to the extent such Pledge Agreements have receivedheretofore been executed and delivered pursuant to the Original Credit Agreement or the Prior Credit Agreement, on behalf a written instrument executed by the Borrower and such Subsidiaries ratifying such Pledge Agreements, which Pledge Agreements pledge (in each case) the Capital Stock of itselfsuch Subsidiaries, together with such stock certificates and other documents provided to be delivered pursuant to the First Lien Collateral Agent Pledge Agreements and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel Collateral Trust Agreement provided for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed in Section 8.03(a) (except to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory extent previously delivered pursuant to the Administrative AgentOriginal Credit Agreement or the Prior Credit Agreement).
(d) The favorable written opinions addressed to the Lenders, and in form and substance satisfactory to the Administrative Agent Agent, from (i) Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx, LLP (counsel to the Borrower), with respect to (A) Borrower and (B) any other Loan Parties (other than those (if any) that are Subsidiaries of New U.S. Home) that are incorporated or formed under Florida, Delaware or New York law and that deliver a Guaranty or Pledge Agreement on the Closing Date, which opinion shall have received be substantially in the form delivered pursuant to the Prior Credit Agreement but which shall be limited to this Agreement and the Notes, Guaranties and Pledge Agreements delivered on the Closing Date hereunder and (ii) (if applicable) from Xxxxxx Xxxx (Executive Director-Legal, of New U.S. Home) substantially in the form delivered pursuant to the Prior Credit Agreement, but only with respect to the Subsidiaries of New U.S. Home (if any) that deliver Guaranties or Pledge Agreements on the Closing Date hereunder. The Borrower hereby instructs such counsel to prepare their opinions and deliver such opinions to the Lenders for the benefit of the Lenders, and such opinions shall contain a statement to such effect.
(xe) certificates The following supporting documents with respect to each Loan Party (except as otherwise provided below): (i) a copy of its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date to be a true and accurate copy by the Secretary of State of its state of incorporation or formation (except as otherwise provided below); (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date, as to its existence and (if available) good standing (except as otherwise provided below); (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation, in which it does business, as to its qualification as a foreign corporation; (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date (except as otherwise provided below); (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement and any Notes, Guaranties and other Loan Documents delivered on the Closing Date to which it is a party and the performance by it of all its obligations thereunder; and (vii) such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or additional supporting documents and other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party information with respect to its operations and affairs as the Administrative Agent may reasonably require evidencing request; provided, however, that, with respect to Loan Parties (other than the identityBorrower) that have delivered a Guaranty or Pledge Agreement prior to, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificatenot on, dated as of the Amendment No. 3 Effective Closing Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth items identified in Sections 4(f) and (g).
this subparagraph (e) Payment of all reasonable fees and expenses due shall not be required to be delivered to the extent that the Borrower delivers to the Administrative Agent a certificate certifying that the items referred to under clauses (i), (iv), (v) and the Arrangers (vi) above (as agreed applicable) delivered to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Original Closing Date and or the Prior Closing Date with respect to such Loan Parties have not been modified or amended since the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Datedate o which they were so delivered.
(f) The Certificates signed by a duly authorized officer of the Borrower stating that: (i) the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement IV hereof are correct and any other Loan Document shall be true and correct in all material respects accurate on and as of the date hereof; provided that, to the extent that such representations Closing Date as though made on and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation the Closing Date and warranty that (ii) no event has occurred and is qualified as to “Material Adverse Effect” continuing which constitutes an Event of Default or similar language shall be true and correct in all respects on such respective datesUnmatured Default hereunder.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application A certificate signed by an Authorized Financial Officer of the proceeds thereofBorrower showing in reasonable detail the calculations used to determine the Leverage Ratio for the Pricing Grid.
(h) The Administrative Agent (or its counselcertified financial statements provided for in Section 6.04(b) shall have received a Note executed by and Section 6.04(c) hereof for the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Datequarter ending February 28, 2003.
(i) To The report provided for in Section 6.04(g) hereof for the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Datemonth ending March 31, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act2003.
(j) The certified report provided for in Section 6.04(l) hereof for the quarter ending February 28, 2003.
(k) Such other documents as the Administrative Agent shall have received for the account of each Lender (other than GECC, in or its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Datecounsel may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as and the amendment of the first date (such date being referred Existing Credit Agreement set forth herein are subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions precedent (the date on which all of such conditions shall have been satisfied:first be satisfied (or waived), which in the case of clause (b) may be substantially concurrent with the satisfaction of the other conditions specified below, the “Amendment Effective Date”):
(a) The Administrative Agent shall have received Agent’s (or its counsel’s) receipt of copies of the following:
(i) counterparts of this Amendment, duly Amendment executed and delivered by (Ai) the BorrowerBorrowers, the Guarantors and all Revolving Credit Lenders under the Existing Credit Agreement (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) constituting the Required Lenders thereunder), and (Gii) the 2021 New Revolving Credit Lenders; or, as to any of the foregoing Lenders or 2021 New Revolving Credit Lenders, advice satisfactory to the Administrative Agent.Agent that such Lender has executed this Amendment;
(bii) The Administrative Agent shall have received the Notes payable to the order of the Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a) of the Amended Credit Agreement;
(iii) certified copies of the resolutions of the boards of directors (or the equivalent thereof or a Committed senior officer thereof) of each of the Borrowers and each Guarantor approving the execution and delivery of the Amendment and each other applicable Loan Notice Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the Incremental Term B-2 Loans not later Amendment, the other Transactions and each other Loan Document;
(iv) (A) a copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State (or other appropriate Governmental Authority) of the jurisdiction of its incorporation or organization (to the extent applicable and available in the relevant jurisdiction) (in case of Luxembourg Loan Parties, a copy of the applicable up-to-date consolidated articles of association, an electronic certificate of non-inscription of insolvency proceedings issued by the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés, Luxembourg) in Luxembourg (the “RCS”) as at a date no earlier than 5:30 p.m. one (New York, New York time1) on the Business Day prior to the requested Amendment Effective Date and an up-to-date, true and complete electronic excerpt of the RCS as at a date no earlier than one (1) Business Day prior to the Amendment Effective Date (or such other date reasonably acceptable to the Administrative Agent), as the case may be, thereof as being a true and complete copy thereof or (B) a certificate signed on behalf of each Loan Party certifying no changes to any of such Loan Party’s charters or other constitutive documents since the Amendment No. 3 4 Effective Date., in lieu of the foregoing;
(cv) The Administrative Agent shall have received, a certificate of each Loan Party signed on behalf of itselfsuch Loan Party by a Responsible Officer (and with respect to any Luxembourg Loan Party, by a manager (gérant)), dated the First Lien Collateral Agent Amendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document or the equivalent thereof in the applicable jurisdiction) of such Loan Party and the Lendersabsence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document or the equivalent thereof in the applicable jurisdiction) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in clause (iii) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party (and, in the case of a Luxembourg Loan Party, that it is not subject to insolvency proceedings such as bankruptcy (faillite), compulsory liquidation (liquidation judiciaire), voluntary liquidation (liquidation volontaire) winding-up, moratorium, composition with creditors (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de la faillite), fraudulent conveyance, general settlement with creditors, reorganization or similar order or proceedings affecting the rights of creditors generally and any proceedings in jurisdictions other than Luxembourg having similar effects); (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Amendment Effective Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Amendment Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2020;
(vi) a certificate of the Secretary or an opinion Assistant Secretary (or the equivalent thereof) of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign the Amendment and the other documents to be delivered thereunder;
(vii) a certificate, in substantially the form of Exhibit I to the Existing Credit Agreement attesting to the Solvency of Dana and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the transactions contemplated hereby), from Ropes its Chief Financial Officer or other financial officer;
(viii) favorable opinions of (A) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxx Xxxxxxxx, LLP, New York counsel for to the Loan Parties, (B) Xxxxxxxx, Loop & Xxxxxxxx, LLP, Michigan and Ohio counsel to the Loan Parties, and (C) Dentons Luxembourg, counsel to the Luxembourg Loan Parties, in each case dated as of the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received addressing such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party matters as the Administrative Agent may reasonably require evidencing the identityrequest, authority and capacity including in respect of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).collateral;
(eb) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced The Revolving Credit Lenders shall have received at least two Business Days (2) days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by bank regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulationsregulations and Beneficial Ownership Regulation, including without limitation limitation, the PATRIOT Act.
Patriot Act to the extent reasonably requested of the Borrowers at least four (j4) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately days prior to the Amendment No. 3 Effective Date;
(c) Since December 31, 2020, there shall not have occurred a Material Adverse Effect; and
(d) Dana shall have paid all costs, fees and expenses (including, without limitation, legal fees and expenses in full in cash to the extent due and payable for which Dana has received an invoice at least one (1) day prior to the Amendment Effective Date) and other compensation payable to the Agents or the Lender Parties.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The Effective Date of this Agreement shall become effective as of be on the first date (such date being referred to as the “Amendment No. 3 Effective Date”, on which date is August 8, 2014) when each all of the following conditions shall have been satisfied:
(A) no law, regulation, order, judgment or decree of any Governmental Authority shall, and the Lender shall not have received any notice that litigation is pending or threatened which is likely to, (a) The Administrative Agent shall have received this Amendmentenjoin, duly executed and delivered by prohibit or restrain the making of an Advance hereunder or (Ab) impose or result in the Borrower, imposition of a Material Adverse Effect;
(B) Holdings, all due diligence materials requested by the Lender from the Borrower shall have been delivered to the Lender and such due diligence materials shall be in form and substance satisfactory to the Lender;
(C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect Borrower has furnished to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date Lender each of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have receivedfollowing, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, all in form and substance reasonably satisfactory to the Administrative Agent.Lender:
(di) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Partythis Agreement, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed duly executed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).;
(eii) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower)Note, in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note duly executed by the Borrower for in favor of the Lender; the Cross Agreement executed by Borrower, each Lender that requests such Dealership Guaranto and each Subsidiary Holding Company;
(iv) a Note at least two Business Days prior Dealership Guaranty executed by each Sonic Dealership which has not heretofore provided a Dealership Guaranty to the Amendment No. 3 Effective DateLender;
(v) a Dealership Security Agreement executed by each Sonic Dealership which has not heretofore provided a Dealership Security Agreement to the Lender;
(vi) a Subsidiary Holding Company Guaranty executed by each Subsidiary Holding Company which has not heretofore provided a Subsidiary Holding Company Guaranty to Lender.
(ivii) To the extent reasonably requested a Subsidiary Holding Company Security Agreement executed by the Arrangers in writing each Subsidiary Holding Company which has not less than five heretofore provided a Subsidiary Holding Company Security Agreement to Lender.
(5viii) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to each Dealership/Subsidiary Holding Company Security Agreement delivered by a Sonic Dealership/Subsidiary Holding Company, an amendment to such Security Agreement attaching a revised exhibit thereto, which such revised exhibit shall reflect only Permitted Existing Liens; the Loan Parties required Reaffirmation of Guaranty duly executed by regulatory authorities under applicable “know-your-customer” each Dealership Guarantor and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.Subsidiary Holding Company Guarantor which has previously provided either a Dealership Guaranty or a Subsidiary Holding Company Guaranty;
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Sixth Amendment No. 3 Effective Date”) when, which date is August 8and only when, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received this Amendmentreceived, duly dated as of the Sixth Amendment Effective Date, an executed and delivered by (A) counterpart hereof from each of the BorrowerBorrowers, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative AgentRequired Revolving Lenders.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New Yorkreceived, New York time) on the Business Day prior to the requested date dated as of the Sixth Amendment No. 3 Effective Date, an executed counterpart of the Consent, Reaffirmation, and Agreement of Guarantor from each Guarantor.
(c) The Administrative Agent shall have received, on behalf received a certificate of itself, the First Lien Collateral Agent and secretary or an assistant secretary of each Credit Party executing any Credit Documents as of the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan PartiesSixth Amendment Effective Date, dated the Sixth Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that the organizational documents of such Credit Party have not been amended, amended and restated, or otherwise modified since the Third Amendment Effective Date (and if such organizational documents have been amended, amended and restated, or otherwise modified, attaching copies thereof) and (ii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above, as applicable.
(d) The Administrative Agent To the extent invoiced at least one (1) Business Day prior to the Sixth Amendment Effective Date, the Borrowers shall have received such (x) certificates paid all reasonable out-of-pocket costs and expenses of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing and the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Lenders in connection with the preparation, negotiation, execution and delivery of this Amendment and (y) a certificateincluding, dated as of without limitation, the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and out-of-pocket expenses due of counsel and the financial advisor to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actthereto).
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to (the requested date “Second Amendment Effective Date”) on which (x) Lender has received all of the documents and payments set forth below, and (y) Lender has delivered an executed counterpart of this Amendment No. 3 Effective Dateto Borrower.
(i) two copies of this Amendment executed by Borrower;
(ii) one copy of the Substitute Note executed by Borrower;
(iii) two copies of a Confirmation and Amendment of Guarantor Documents executed by the Guarantors (the “Confirmation”);
(iv) a certificate of the Secretary of Borrower (the “Borrower Secretary’s Certificate”) which shall certify (a) resolutions of the managers of Borrower evidencing approval of this Agreement and authorizing the execution and delivery of the same; (b) the names and true signatures of the officers of Borrower authorized to sign this Agreement; and (c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed that there has been no change to the Administrative AgentOrganizational Documents of Borrower since April 23, 2015;
(v) a certificate of the First Lien Collateral Agent Secretary of each Guarantor (the “Guarantor Secretary’s Certificate”) which shall certify (a) resolutions of the managers of each Guarantor evidencing approval of the Confirmation and authorizing the Lenders, in form execution and substance reasonably satisfactory delivery of the same; (b) the names and true signatures of the officers of such Guarantor authorized to sign the Confirmation; and (c) that there has been no change to the Administrative Agent.Organizational Documents of such Guarantor since April 23, 2015;
(d) The Administrative Agent shall have received such (xvi) certificates of good standing (with respect to the extent such concept exists) each Obligor from the applicable secretary jurisdictions indicated on the Borrower Secretary’s Certificate and the Guarantor Secretary’s Certificate; and
(vii) payment from Borrower of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority all costs and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer expenses incurred by Lender in connection with the drafting, negotiation, execution and implementation of this Amendment and (y) a certificateAmendment, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent Confirmation and the Arrangers (as agreed other documents referred to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment Noherein. 3 Effective Date If and to the extent invoiced Lender has not received at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties requisite number of originals of the Borrower and each other Loan Party contained documents set forth in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
clauses (i) To through (v) above on the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Second Amendment No. 3 Effective Date, the Administrative Agent Borrower shall have received, prior cause such originals to the effectiveness of this Amendment, all documentation and other information with respect be delivered to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActLender or its counsel within three Business Days thereafter.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Loan Agreement (PCI Media, Inc.)
Conditions of Effectiveness. This effectiveness of this Amendment shall become effective as of is subject to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfied:precedent.
(a) The Administrative Agent shall have received each of the following: (i)counterparts of this AmendmentAmendment executed by the Borrower, duly the Administrative Agent, each L/C Issuer and each Lender with a Commitment shown on Schedule 2.01 attached hereto; (ii)a Note executed and delivered by the Borrower in favor of each New Lender requesting a Note; (iii)a certificate of a Responsible Officer of the Borrower (A) certifying as to the Borrowerincumbency and genuineness of the signature of each officer of the Borrower executing this Amendment, (B) Holdingscertifying that attached thereto is a true, correct and complete copy of the Organization Documents of the Borrower, or certifying that such Organization Documents were delivered on the Closing Date and certifying that since such date there have been no changes thereto and (C) attaching resolutions adopted by the Guarantors, board of directors (Dor other governing body) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, Borrower authorizing and approving the First Lien Collateral Agent transactions contemplated hereunder and the Lendersexecution, an delivery and performance of this Amendment; (iv)a certificate evidencing the existence and good standing of the Borrower, issued as of a recent date by the applicable Governmental Authority of its jurisdiction of organization; (v)a favorable opinion from Ropes of Xxxxxx & Xxxx Xxxxxxx, LLP, New York counsel for covering such matters concerning the Loan Parties, dated Borrower and this Amendment as the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersArrangers may reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received Arrangers, such (x) certificates of good standing (opinion to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as be addressed to the Administrative Agent may reasonably require evidencing and each Lender; (vi)(A) quarterly financial statements and compliance certificate as required by the identityExisting Credit Agreement for the fiscal quarter ended September 30, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment 2014, and (yB) pro forma consolidated financial statements for the Borrower and its Subsidiaries for the nine-month period ended September 30, 2014 (the “Pro Forma Financial Statements”), consisting of a certificateconsolidated statement of earnings and a balance sheet, dated in each case giving pro forma effect to the Transactions as if the Transactions had occurred as of such date (in the Amendment No. 3 Effective Datecase of such balance sheet) or at the beginning of such period (in the case of such statement of earnings), signed and in each case certified by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.and
Appears in 1 contract
Samples: Credit Agreement
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”when, which date is August 8and only when, 2014) when each GECCPR shall have received all of the following conditions shall have been satisfieddocuments, each document (unless otherwise indicated) being dated the date hereof, in form and substance satisfactory to GECCPR:
(a) The Administrative Agent shall have received this AmendmentAn option dated the date hereof in the form attached hereto as Exhibit A, duly executed and delivered by (A) from the Borrowerlaw firm of Shack & Xxxxxx, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.P.C.;
(b) The Administrative Agent shall have received a Committed Loan Notice with respect Promissory notes, substantially in the form of Exhibit B hereto, evidencing the additional indebtedness resulting from the increased loan amount being made available to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior Borrower pursuant to the requested date of the Amendment No. 3 Effective Date.this Amendment;
(c) The Administrative Agent shall have receivedPersonal property mortgages in form and substance acceptable to GECCPR and executed by the Borrower, on behalf or Xxxxxxxx Hospitality Group, Inc., previously Xxxxxxxx Hospitality Management Corporation, as the case may be, creating a continuing first priority security interest in favor of itselfGECCPR covering the additional furniture, fixtures, machinery, and equipment, including motor vehicles, financed pursuant to this Amendment;
(d) Letters of consent from each of the First Lien Collateral Agent Guarantors acknowledging and consenting to this Amendment and the Lendersextension of the guarantees up to 50% of the additional loan provided hereby;
(e) A letter of amendment signed by The Mitsubishi Bank, an opinion from Ropes & Xxxx LLPLimited, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersGovernment Development Bank for Puerto Rico, in form and substance reasonably satisfactory to GECCPR and its legal counsel, amending the Administrative Agent.Mortgagee Estoppel, Consent and Subordination Agreement executed by said parties pursuant to the Loan Agreement;
(df) The Administrative Agent shall have received such (x) certificates Certified copies of good standing (all partnership action taken by the Borrower to authorize the extent such concept exists) from the applicable secretary execution and delivery of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and any other documents or instruments to be delivered by Borrower hereunder;
(yg) a certificate, dated as Certified copies of all corporate action taken by the Guarantors and the corporate partners of the Borrower to authorize the execution and delivery of this Amendment No. 3 Effective Date, signed by a Responsible Officer and any other documents or instruments to be delivered to GECCPR hereunder;
(h) A certification from an authorized signatory of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers Guarantors, and the Borrower)'s corporate partners as the case may be, in each case required certifying the names and true signatures of the officers authorized to sign this Amendment and any other documents or instruments to be paid on the Amendment No. 3 Effective Date and delivered to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.GECCPR pursuant hereto; and
(fi) The A certificate signed by a duly authorized officer of the Borrower stating that the representations and warranties of made by the Borrower in the Loan Agreement are true, accurate, and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and complete as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Loan Agreement (WMS Hotel Corp)
Conditions of Effectiveness. This Amendment The Effective Date of this Agreement shall become effective as of be the first date (such date being referred to as the “Amendment No. 3 Effective Date”, on which date is August 8, 2014) when each all of the following conditions shall have been satisfiedsatisfied or waived by the Agent:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the BorrowerLenders shall have completed a due diligence investigation of the Transaction Parties in scope, and with results satisfactory to the Lenders, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe (i) that any information provided by the Transaction Parties to any Lender was or has become misleading, incorrect or incomplete in any material respect, (ii) that, as of the Effective Date, the Transaction Parties would not have good and marketable title to all of the material assets reflected in the information provided by them to any Lender and (iii) that the financing contemplated hereby will have a Material Adverse Effect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Transaction Parties as they shall have requested;
(B) Holdings, all due diligence materials requested by the Lenders from the Borrower shall have been delivered to the Lenders and such due diligence materials shall be in form and substance satisfactory to the Lenders;
(C) the GuarantorsBorrower has furnished to the Agent each of the following, all in form and substance satisfactory to the Agent:
(i) this Agreement, duly executed by the Borrower;
(ii) the Notes, duly executed by the Borrower in favor of each Lender;
(iii) the Cross Agreement duly executed by Borrower and each Guarantor;
(iv) a Dealership Guaranty and Subsidiary Holding Company Guaranty, duly executed by each Dealership and Subsidiary Holding Company, respectively, to the Agent;
(v) the Borrower Security Agreement, a Dealership Security Agreement and a Subsidiary Holding Company Security Agreement executed by Borrower, each Dealership and each Subsidiary Holding Company to the Agent, and a Pledged Account Agreement executed by each Transaction Party, together with:
(A) acknowledgment copies of proper financing statements (to be duly filed by the Agent on or before the day of the Initial Borrowing), under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described in the Collateral Documents,
(B) completed requests for information, dated on or before the date of the initial Borrowing, listing the financing statements referred to in clause (A) above and all other effective financing statements filed in the jurisdictions referred to in clause (A) above that name the relevant Loan Party as debtor, together with copies of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to each relevant Loan Party that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) evidence of the Incremental Term B-2 Lenderinsurance required by the terms of the Loan Documents,
(E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, (F) the Required Lenders without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and (G) the Administrative Agentlandlords' and bailees' waiver and consent agreements).
(bvi) The Administrative Agent shall have received a Committed Loan Notice with respect the Borrower Pledges, the Dealership Pledge and the Subsidiary Holding Company Pledge, executed by each of Borrower, each Dealership and each Subsidiary Holding Company, respectively, to the Incremental Term B-2 Loans not later than 5:30 p.m. Agent (New Yorkfor the benefit of the Lenders) together, New York timewith (A) on stock certificates evidencing the Business Day prior pledged Equity Interests referred to therein and undated stock powers executed in blank, and (B) acknowledgment copies of Uniform Commercial Code financing statements covering "Investment Property";
(vii) to the requested extent the Borrower, any Dealership or Subsidiary Holding Company has any Indebtedness other than Permitted Existing Indebtedness and Liens other than Permitted Existing Liens, pay-out letters, releases and UCC-3 Termination Statements, where applicable, from all third-party creditors releasing all Liens securing any such Indebtedness;
(viii) Certificates of good standing for each Transaction Party from its jurisdiction of incorporation and each other jurisdiction where the nature of its business requires it to be qualified as a foreign corporation;
(ix) a copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Transaction Party, dated reasonably near the date of the Amendment No. 3 Effective Date.initial Borrowing, certifying (A) as to a true and correct copy of the certificate of incorporation (or other Charter Documents) of such Person and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Person's certificate of incorporation (or other Charter Documents) on file in such Secretary's office, (2) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation;
(cx) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent a Secretary's Certificate and the Lenders, an opinion a Solvency Certificate from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenderseach Transaction Party;
(xi) a certificate, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to Lender, signed by the extent such concept exists) from the applicable secretary of state chief financial officer of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated Borrower stating that as of the Amendment No. 3 Effective Date, signed by a Responsible Officer no Event of the BorrowerDefault or Unmatured Default has occurred and is continuing, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct with full force and effect as if made on the Effective Date;
(xii) to the extent not included in the foregoing, the documents, instruments and agreements set forth on the closing list attached as Exhibit E hereto;
(xiii) such consents, waivers or other documents as any Lender or its counsel may have reasonably requested;
(xiv) favorable opinions of counsel for each Loan Party in form and substance satisfactory to the Agent;
(xv) the loss payable endorsements referenced in Section 5.2 (G) shall have been delivered to the Agent;
(xvi) the Agent shall be satisfied with the corporate and legal structure and capitalization of each Transaction Party, including the terms and conditions of the Charter Documents of each such Person and of each agreement or instrument relating to such structure or capitalization;
(xvii) there shall have occurred and be continuing no Material Adverse Change since November 30, 2000;
(xviii) There shall exist no action, suit, investigation, litigation or proceeding affecting any Transaction Party pending or threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse 44 Effect other than the matters described on Schedule 3.1 hereto (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby;
(xix) All material governmental and third party consents and approvals necessary in connection with the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Required Lenders) and shall remain in effect; all material respects on applicable waiting periods in connection with the Loan Documents or the consummation of the transactions contemplated thereby shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the reasonable judgment of the Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the consummation of the transactions contemplated thereby or the rights of the Transaction Parties freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them;
(xx) Borrower shall have paid a fee in the amount of $11,000,000.00 (the "Closing Fee") to the Lenders (which will be distributed among the Lenders pursuant to the terms of a separate agreement among the Lenders), and all other reasonable accrued fees of the Agent and the Lenders and all reasonable accrued expenses of the Agent and the Lenders (including the reasonable accrued fees and expenses of counsel to the Agent and each Lender);
(xxi) The Agent shall be satisfied with the amount, parties, terms and conditions and prospects for performance of all Acquisition Documents then in existence with respect to any Pending Acquisition by the Borrower or any of its Subsidiaries which the Borrower reasonably expects, as of the date hereof; provided that, to consummate after the extent that such representations day of the Effective Date; and warranties specifically refer to an earlier date, they the Agent shall be true and correct in satisfied with all material respects as aspects of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesPending Acquisitions.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of on the first date (such date being referred to as the “Amendment No. 3 Effective Date”"EFFECTIVE DATE") when, which date is August 8and only when, 2014(a) when each the Noteholders shall have received all of the following conditions shall have been satisfied:
documents, each (aunless otherwise indicated) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, being dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersdate hereof, in form and substance reasonably satisfactory to each of the Administrative Agent.Noteholders:
(di) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization executed originals of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Consent and Reaffirmation of Guarantors, attached hereto;
(yii) a certificatean opinion letter (together with any opinions of local counsel relied on therein) of (i) Weil, Gotshal & Manges LLP, special counsel for xxx Xxmpany and the Guarantors, and (ii) Robert A. Emken, Jr., General Coxxxxx xxx xxx Xxxxxxy and the Guarantors, each dated as of the Amendment No. 3 Effective Date and covering such matters relating hereto and to the transactions contemplated hereby as the Purchasers may reasonably request;
(iii) resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Company certified by its secretary or assistant secretary as of the Effective Date, signed by a Responsible Officer approving and adopting this Amendment, and authorizing the execution and delivery thereof and the matters contemplated hereby;
(iv) specimen signatures of officers or other appropriate representatives executing this Amendment on behalf of the BorrowerCompany, confirming satisfaction certified by the secretary or assistant secretary of the conditions set forth in Sections 4(f) and (g).Company;
(ev) Payment the Organizational Documents of all reasonable fees and expenses due the Company certified as of a recent date by the Secretary of State of its state of organization;
(vi) certificates issued as of a recent date by the Secretary of State of the jurisdiction of formation of the Company as to the Administrative Agent due existence and good standing of the Arrangers Company;
(vii) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of the Company as agreed to of a recent date by the Secretary of State or comparable official of each jurisdiction in writing between which the Administrative Agent and/or the Arrangers and the Borrower), in each case required failure to be paid on the Amendment No. 3 Effective Date and qualified to the extent invoiced at least two Business Days prior do business or authorized so to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall conduct business could have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.a Material Adverse Effect;
(fviii) The representations receipt of and warranties of satisfaction with the Borrower and each other Loan Party contained in Article V of amendment to the Credit Agreement and any other Loan Document shall amending sections thereof to be true and correct in all material respects on and as consistent with the amendments contained herein;
(ix) duly executed copy of the date hereofMorelos Assets Sale Letter and approval thereof by each Secured Party; provided that, and
(x) duly executed copy of the Special Transaction Letter and approval thereof by each Secured Party (subject to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as provisions of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesSection 10.6(xxiii)).
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Note Agreement (Guilford Mills Inc)
Conditions of Effectiveness. This Amendment shall become effective The obligations of Administrative Agent and the Lenders to amend the Credit Agreement as of provided herein are subject to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each fulfillment of the following conditions shall have been satisfiedprecedent:
(a) The Borrower, Parent and each Lender shall have delivered to Administrative Agent shall have received multiple duly executed counterparts of this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.;
(b) The Borrower shall have delivered to Administrative Agent (i) duly executed and notarized Security Instruments, or amendments and supplements thereto, in sufficient counterparts for recordation in each relevant county and parish, as Administrative Agent may reasonably request to evidence the amendment to the Maturity Date herein and otherwise comply with the terms of the Intercreditor Agreement, (ii) a duly executed and effective Fee Letter, in form and substance satisfactory to the Lenders and (iii) a fully executed and effective copy of the Fourth Amendment to First Lien Credit Agreement;
(c) Borrower shall have delivered to Administrative Agent evidence, reasonably satisfactory to Administrative Agent, that the Mortgaged Properties represent at least 80% of the total value of the Proved Oil and Gas Properties evaluated in the most recently completed Reserve Report after giving effect to exploration and production activities, acquisitions, dispositions and production;
(d) Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date fully executed and effective copy of the Amendment No. 3 Effective Date.
(c) The Consent to Intercreditor Agreement dated as of even date herewith, executed by and between Administrative Agent shall have received, on behalf of itself, and the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.;
(de) The Administrative Agent shall have received such (x) certificates of good standing (all fees, expenses and other amounts due and owing to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between Lenders under the Administrative Agent and/or the Arrangers Fee Letter referenced above and the Borrower)Loan Documents, in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectivenessincluding, without limitation, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.amounts described more fully in Section 6 hereof;
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for a certificate of the account Secretary or an Assistant Secretary or a Responsible Officer of each Lender Borrower and Parent setting forth (i) resolutions of its board of directors or managers or other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page relevant governing body with respect to the authorization of such Person to execute and deliver this Amendment and to enter into the transactions contemplated by this Amendment, (ii) the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% officers of such Lender’s principal amount Person who are authorized to sign this Amendment on behalf of Term B-2 Loanssuch Person and specimen signatures of such authorized officers, Revolving Credit Loans and/or Revolving Credit Commitmentsand (iii) the articles or certificate of limited partnership, formation or incorporation, as applicable, outstanding immediately prior and the limited partnership agreement, operating agreement, bylaws or other governing document, as applicable, of such Person, certified as being true and complete, each of which certifications may, if applicable, be by reference to previously-delivered certificates of any such officer. Administrative Agent and the Lenders may conclusively rely on such certificates until Administrative Agent receives notice in writing from the Borrower or the Parent, as applicable, to the Amendment No. 3 Effective Datecontrary;
(g) Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of Borrower and Parent;
(h) no Material Adverse Effect shall have occurred; and
(i) no Default or Event of Default shall have occurred.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as The effectiveness of this Agreement is subject to the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfied:(the date of such effectiveness, the “Restatement Date”):
(a) The Administrative Agent Each Purchaser shall have received original counterparts or, if satisfactory to such Purchaser, certified or other copies of this AmendmentAgreement and all of the following, each duly executed and delivered by the party or parties thereto, in form and substance satisfactory to such Purchaser dated the Restatement Date unless otherwise indicated, and, on the Restatement Date, in full force and effect with no event having occurred and being then continuing that would constitute a default thereunder or constitute or provide the basis for the termination thereof:
(Ai) (1) a Guaranty Agreement in favor of the holders of the Notes in the form of Exhibit E-1 hereto (including any joinder thereto and as the same may be amended, modified or supplemented from time to time in accordance with the provisions thereof, collectively called the “Guaranty Agreement”), made by each Person which is, on the Restatement Date, a co-borrower or a co-obligor with the Company under, or is obligated under a Guaranty with respect to, any Indebtedness of the Company under the Primary Working Capital Facility and is not then a party to the Guaranty Agreement; and (2) an Officer’s Certificate certifying as to any Person which is then a co-borrower or co-obligor with the Company under, or obligated under a Guaranty with respect to, any Indebtedness of the Company under the Primary Working Capital Facility;
(ii) the BorrowerIntercreditor Agreement;
(iii) the Intercompany Subordination Agreement;
(iv) the Security Agreement;
(v) the Pledge Agreement;
(vi) all chattel paper, instruments and documents of title in which the Collateral Agent has been granted a security interest and are then required under the Collateral Documents to be delivered to the Collateral Agent, together with the related transfer documents executed in blank, in each case received by the Collateral Agent, all Uniform Commercial Code financing statements perfecting the security interests and liens granted to the Collateral Agent, duly filed in all offices necessary to perfect such security interests and liens or deemed by such Purchaser to be advisable, and all such other certificates, documents, agreements, recording and filings necessary to establish a valid and perfected first priority lien and security interest (subject only to Permitted Liens) in favor of the Collateral Agent in all of the Collateral or deemed by such Purchaser to be advisable;
(vii) a Secretary’s Certificate signed by the Secretary or an Assistant Secretary and one other officer of the Company and each Guarantor certifying, among other things, (B1) Holdingsas to the names, titles and true signatures of the officers of the Company or such Guarantor, as the case may be, authorized to sign the documents to be delivered in connection with this Agreement and the other Transaction Documents to which the Company or such Guarantor, as the case may be, is a party, (C2) that attached thereto is a true, accurate and complete copy of the certificate of incorporation or other formation document of the Company or such Guarantor, as the case may be, certified by the Secretary of State of the state of organization of the Company or such Guarantor, as the case may be, as of a recent date, (3) that attached thereto is a true, accurate and complete copy of the by-laws, operating agreement or other organizational document of the Company or such Guarantor, as the case may be, which were duly adopted and are in effect as of the Restatement Date and have been in effect immediately prior to and at all times since the adoption of the resolutions referred to in clause (4), below, (4) that attached thereto is a true, accurate and complete copy of the resolutions of the board of directors or other managing body of the Company or such Guarantor, as the case may be, duly adopted at a meeting or by unanimous written consent of such board of directors or other managing body, authorizing the execution, delivery and performance of the Transaction Documents to which the Company or such Guarantor, as the case may be, is a party, being delivered on the Restatement Date and the other documents to be delivered in connection with this Agreement and such other Transaction Documents to which the Company or such Guarantor, as the case may be, is a party, and that such resolutions have not been amended, modified, revoked or rescinded, and are in full force and effect and are the only resolutions of the shareholders, partners or members of the Company or such Guarantor, as the case may be, or of such board of directors or other managing body or any committee thereof relating to the subject matter thereof, (5) the GuarantorsTransaction Documents being delivered on the Restatement Date and the other documents to be delivered in connection with this Agreement executed and delivered to such Purchaser by the Company or such Guarantor, as the case may be, are in the form approved by its board of directors or other managing body in the resolutions referred to in clause (D) the Incremental Term B-2 Lender4), (F) the Required Lenders above and (G6) that no dissolution or liquidation proceedings as to the Administrative AgentCompany or any Subsidiary have been commenced or are contemplated;
(viii) a certificate of corporate or other type of entity and tax good standing for each Transaction Party from the Secretary of State dated as of or as of a date reasonably prior to the Restatement Date (1) of the state of organization of such Transaction Party and (2) of each state in which such Transaction Party is required to be qualified to transact business as a foreign organization and where the failure to be so qualified or licensed could reasonably likely have a Material Adverse effect, in each case dated as of a recent date;
(ix) certified copies of Requests for Information or Copies (Form UCC-11) or equivalent reports in each case dated as of a date reasonably prior to the Restatement Date listing all effective financing statements which name any Transaction Party (under its present name and previous names used) as debtor and which are filed in the office of the Secretary of State (or such other office which is, under the Uniform Commercial Code as in effect in the applicable jurisdiction, the proper office in which to file a financing statement under Section 9-501(a)(2) of such Uniform Commercial Code) of the location (as determined under the Uniform Commercial Code) of such Transaction Party together with, to the extent requested by Prudential, copies of such financing statements, and lien and judgment search reports from the county recorder of any county in which such Transaction Party maintains an office or in which any assets of such Transaction Party are located; and
(x) such other certificates, documents and agreements as such Purchaser may reasonably request.
(b) The Administrative Agent Each Purchaser shall have received from Xxxxx X. Xxxxxxx, Vice President and Corporate Counsel of Prudential, or such other counsel who is acting as special counsel for such Purchaser in connection with this Agreement, a Committed Loan Notice with respect favorable opinion satisfactory to such Purchaser as to such matters incident to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Datematters herein contemplated as it may reasonably request.
(c) The Administrative Agent Each Purchaser shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion received from Ropes & Xxxx Squire Xxxxxx Xxxxx (US) LLP, New York special counsel for the Loan PartiesCompany and the Guarantors (or such other counsel designated by the Company and acceptable to such Purchaser), a favorable opinion satisfactory to such Purchaser, dated the Amendment NoRestatement Date, and substantially in the form of Exhibit F attached hereto and as to such other matters as such Purchaser may reasonably request. 3 Effective Date The Company, by its execution hereof, hereby requests and addressed authorizes such special counsel to the Administrative Agent, the First Lien Collateral Agent render such opinion and the Lenders, in form to allow such Purchaser to rely on such opinions and substance reasonably satisfactory understands and agrees that each Purchaser receiving such an opinion will be relying on and is hereby authorized to the Administrative Agentrely on such opinion.
(d) The Administrative Agent representations and warranties contained in paragraph 8 and in the Guaranty Agreement shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority be true on and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Restatement Date, signed by a Responsible Officer both before and immediately after giving effect to the consummation of the Borrowertransactions contemplated hereby; there shall exist on the Restatement Date no Event of Default or Default, confirming satisfaction both before and immediately after giving effect to the consummation of the transactions contemplated hereby; the Company and each Guarantor shall have performed all agreements and satisfied all conditions set forth in Sections 4(f) required under this Agreement or the Guaranty Agreement to be performed or satisfied on or before the Restatement Date; and (g)the Company and each Guarantor shall have delivered to such Purchaser an Officer’s Certificate, dated the Restatement Date, to each such effect.
(e) Payment of all reasonable The Company shall have paid to each Purchaser in immediately available funds any fees and expenses due it pursuant to or in connection with this Agreement, including the Administrative Agent Structuring Fee and the Arrangers (as agreed Amendment Fee due pursuant to in writing between the Administrative Agent and/or the Arrangers and the Borrowerparagraph 2A(8)(i), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations Company shall have delivered from insurance carriers acceptable to each Purchaser certificates and/or other evidence of insurance in such forms and warranties amounts acceptable to such purchaser evidencing insurance required to be maintained under paragraph 5F hereof or under any of the Borrower Collateral Documents under insurance policies with loss payable clauses in favor of the Collateral Agent and each acceptable to such Purchaser.
(g) The Credit Agreement, providing for a $550,000,000 revolving credit facility to the Company (which may be increased (or potential term loans may be added) to an aggregate amount not to exceed $700,000,000) and having other Loan Party contained terms and conditions satisfactory to such Purchaser, shall have been duly executed and delivered by the Company, the Bank Agent and the Banks, and shall be in Article V full force and effect. All conditions precedent to the making of the initial revolving loans under the Credit Agreement shall have been satisfied except to the extent waived with the consent of such Purchaser (and, to the extent any part of any such condition requires that any matter be satisfactory to the Bank Agent, the Banks or any portion of the Banks, such matter shall be satisfactory to such Purchaser) and prior to, or concurrently with, the effectiveness of this Agreement, the Company shall have received the proceeds of the initial revolving loans thereunder. All necessary authorizations, consents, approvals, exceptions or other actions by or notices to or filings with any court or administrative or governmental body or other Person required in connection with the execution, delivery or performance of the Credit Agreement or the consummation of the transactions contemplated thereby shall be final and in full force and effect and shall be in form and substance satisfactory to such Purchaser. Each Purchaser shall have received a copy of the Credit Agreement and any other Loan Document shall be true all instruments, documents and correct in all material respects on and as agreements delivered at the closing of making of the date hereof; provided thatinitial revolving loans thereunder, to certified by an Officer’s Certificate, dated the extent Restatement Date, as correct and complete, and such Officer’s Certificate shall confirm that such representations and warranties specifically refer to an earlier datethe Mexicana Credit Agreement has not been amended, they shall be true and correct in all material respects as of such earlier date; providedrestated, furthersupplemented or otherwise modified since March 15, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof2017.
(h) The Administrative Agent (or its counsel) Each Purchaser shall have received a Note executed duly completed certificate signed by an Authorized Officer of the Borrower for each Lender that requests such a Note at least two Business Days Company demonstrating pro forma covenant compliance, after giving effect to the Transaction, with the financial covenants set forth in paragraphs 6A(1) and 6A(2) as of the last day of the fiscal quarter of the Company most recently ended prior to the Amendment No. 3 Effective Restatement Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent Each Purchaser shall have received, prior received a financial forecast model for the Company and its Subsidiaries in form and substance satisfactory to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actsuch Purchaser.
(j) The Administrative Agent Without limiting the provisions of paragraph 11B hereof, the Company shall have received for paid the account reasonable fees, charges and disbursements of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior any special counsel to the Amendment No. 3 Effective DatePurchasers in connection with this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Samples: Private Shelf Agreement (Advanced Drainage Systems, Inc.)
Conditions of Effectiveness. 3.1 This Amendment shall become effective as of the first date (such date being referred to as the “First Amendment No. 3 Effective Date”) when, which date is August 8and only when, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received an executed counterpart of this Amendment, duly executed Amendment from each of the Borrower and delivered by (A) the Borrower, (B) Holdings, (C) Lenders under the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative AgentCredit Agreement.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent:
(i) a certificate from a duly authorized officer of each Borrower to the effect that (A) all representations and warranties of such Borrower contained in this Amendment, the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects) on and as of the First Amendment Effective Date after giving effect to this Amendment; (B) immediately before and after giving effect to this Amendment and the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing; and (C) the Borrower has satisfied each of the conditions set forth in this Section 3.1;
(ii) a certificate of the Secretary or Assistant Secretary of each Borrower certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate of organization of such Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of organization, (B) the bylaws of such Borrower as in effect on the First Amendment Effective Date and (C) resolutions duly adopted by the board of directors (or other governing body) of such Borrower authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party; and
(iii) certificates as of a recent date of the good standing of each Borrower under the laws of its jurisdiction of organization, and, to the extent requested by the Agent, each other jurisdiction where such Borrower is qualified to do business.
(c) The Borrowers shall have paid (A) to the Agent, the Lead Arranger, and the Lenders, as applicable, the fees set forth in the Fee Letter, dated January 30, 2023, among the Borrowers, the Agent and the Lead Arranger (the “Fee Letter”), and (B) subject to the limitations set forth in the Fee Letter, the reasonable fees and out-of-pocket expenses of the Agent (including reasonable and documented fees and out-of-pocket expenses of counsel) incurred in connection with the preparation, negotiation, execution and delivery of this Amendment to the extent invoiced prior to the date hereof.
(d) The Administrative Agent Borrowers shall have received such (x) certificates of good standing (provided to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower)Lenders, in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the First Amendment No. 3 Effective Date, (i) the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to requested by the Loan Parties required by regulatory authorities under applicable “know-your-customer” Agent and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
Lenders in writing at least ten (j10) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Days prior to the First Amendment No. 3 Effective DateDate in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, shall have delivered to each Lender requesting the same at least ten (10) Business Days prior to the First Amendment Effective Date a Beneficial Ownership Certification in relation to such Borrower.
Appears in 1 contract
Samples: Five Year Master Credit Agreement (Wisconsin Power & Light Co)
Conditions of Effectiveness. This Amendment 3.1 The limited consent set forth in Article I shall become effective as of the first date when, and only when, the Administrative Agent shall have received an executed counterpart of this Amendment from the Credit Parties and Lenders constituting Required Lenders under the Credit Agreement.
3.2 The amendments set forth in Section 2.1 hereof shall become effective as of the date (such date being referred to as the “Amendment No. 3 Effective Date”) when, which date is August 8and only when, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received an executed counterpart of this Amendment, duly executed Amendment from the Credit Parties and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Lenders constituting Required Lenders and (G) under the Administrative Agent.Credit Agreement;
(b) The Merger shall have been consummated substantially simultaneously with the Amendment Effective Date in accordance with the terms of the Merger Agreement in all material respects and without giving effect to any modifications, amendments, consents or waivers of the terms of the Merger Agreement that are material and adverse to the Lenders, the Fronting Bank or the Administrative Agent shall have received a Committed Loan Notice with respect to as reasonably determined by the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkAdministrative Agent, New York time) on without the Business Day prior to the requested date consent of the Amendment No. 3 Effective DateRequired Lenders (such consent not to be unreasonably withheld, delayed or conditioned).
(c) The Administrative Agent shall have receivedreceived an executed Guaranty from RenRe Holdings in substantially the form attached hereto as Exhibit A (the “RenRe Holdings Guaranty”);
(d) The Administrative Agent shall have received a certificate, on behalf signed by a Responsible Officer of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersPlatinum Holdings, in form and substance reasonably satisfactory to the Administrative Agent., certifying that (i) all representations and warranties of the Credit Parties contained in the Credit Agreement and the other Credit Documents (including the representations and warranties set forth in Article IV hereof) are true and correct as of the Amendment Effective Date, immediately after giving effect to this Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date), and (ii) no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date, immediately after giving effect to this Amendment;
(de) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state a certificate of the state of organization of each Loan Partysecretary, certificates of resolutions an assistant secretary or other actionappropriate officer of Platinum Holdings, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may in form and substance reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due satisfactory to the Administrative Agent Agent, certifying that (i) attached thereto is a true and complete copy of the Arrangers articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of Platinum Holdings as in effect immediately following the consummation of the Merger and (ii) attached thereto is a true and complete copy of the bylaws or similar governing document of Platinum Holdings as agreed to in writing between effect immediately following the Administrative Agent and/or consummation of the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.Merger;
(f) The representations and warranties Administrative Agent shall have received a certificate of the Borrower secretary, an assistant secretary or other appropriate officer of RenRe Holdings, in form and each other Loan Party contained in Article V substance reasonably satisfactory to the Administrative Agent, certifying that (i) attached thereto is a true and complete copy of the Credit Agreement articles or certificate of incorporation, certificate of formation or other organizational document and any other Loan Document shall be all amendments thereto of RenRe Holdings, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) attached thereto is a true and correct complete copy of the bylaws or similar governing document of RenRe Holdings, as then in all material respects on effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of RenRe Holdings authorizing the execution, delivery and performance of the date hereof; provided thatRenRe Holdings Guaranty, and as to the extent that such representations incumbency and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as genuineness of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.the signature of each officer of RenRe Holdings executing the RenRe Holdings Guaranty;
(g) No Default There shall exist, or would result from be no Loans outstanding on the effectiveness Amendment Effective Date and the aggregate Letter of this Amendment or from the application Credit Exposure of the proceeds thereof.Lenders on the Amendment Effective Date shall not be greater than $100,000,000;
(h) The Administrative Agent (or its counsel) Each Lender shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior other documentation or information regarding RenRe Holdings required to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under satisfy applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Patriot Act., as each Lender may reasonably request at least five Business Days prior to the consummation of the Merger;
(i) All material governmental authorizations and approvals necessary in connection with the consummation of the Merger shall have been obtained and shall remain in effect and shall not impose any restriction or condition materially adverse to the Administrative Agent, the Fronting Bank or the Lenders; and no law or regulation shall be applicable that seeks to enjoin, restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the consummation of the Merger; and all third-party consents necessary in connection with the consummation of the Merger shall have been obtained and remain in effect (except for any third-party consents with respect to which the failure to obtain such consents would not result in a Material Adverse Effect); and
(j) The Credit Parties shall have paid all reasonable out-of-pocket costs and expenses of the Administrative Agent shall have received for in connection with the account preparation, negotiation, execution and delivery of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (including, without limitation, the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent reasonable fees in an amount equal to 0.25% and out-of-pocket expenses of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to counsel for the Amendment No. 3 Effective DateAdministrative Agent with respect thereto).
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of Section 2 of this Amendment shall become effective as of the first date (such date being referred be subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each Agent’s receipt of the following documents, in form and substance satisfactory to Agent, or, as applicable, the following conditions shall have been satisfiedbeing met:
(a) The Administrative Agent shall have received this Amendment, executed by Agent, each Xxxxxx and Xxxxxxxx;
(b) a duly executed certificate of an officer of Borrower certifying and delivered by attaching copies of (A) the Borrowercertificate of formation, certified as of a recent date by the jurisdiction of organization of Borrower and as in effect as of the Amendment Effective Date; (B) Holdingsthe bylaws, operating agreement or similar governing document of Borrower, as in effect as of the Amendment Effective Date; (C) resolutions of Borrower’s Board evidencing approval of this Amendment, as such resolutions remain in full force and effect as of the Guarantors, Amendment Effective Date; and (D) a schedule setting forth the Incremental Term B-2 Lendername, (F) the Required Lenders title and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) specimen signature of officers or other authorized signers on the Business Day prior to the requested date behalf of the Amendment No. 3 Effective Date.Xxxxxxxx;
(c) The Administrative Agent shall have receiveda perfection certificate, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersexecuted by Xxxxxxxx, in form and substance reasonably satisfactory to the Administrative Agent.;
(d) The Administrative Agent shall have received such (x) certificates a certificate of good standing for Borrower from its jurisdiction of organization;
(to the extent e) such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party documents as the Administrative Agent may reasonably require evidencing request;
(f) an amended and restated pledge agreement, executed by Agent, Xxxxxxxx and acknowledged by Xxxxxxxx’s subsidiaries party thereto;
(g) evidence, satisfactory to Agent in its sole discretion, of the identity, authority effectiveness of that certain Collaboration and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificateLicense Agreement, dated as of September 24, 2021 (the “Incyte Collaboration Agreement”), by and between Borrower and Incyte Corporation, a Delaware corporation (“Incyte”);
(h) evidence, satisfactory to Agent in its sole discretion, that Xxxxxxxx has received the initial license fee from Incyte pursuant to Section 8.1(a) of the Incyte Collaboration Agreement;
(i) Borrower shall have paid (i) all invoiced costs and expenses then due in accordance with Section 5(e), and (ii) all other fees, costs and expenses, if any, due and payable as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, Loan Agreement; and
(j) On the Amendment No. 3 Effective Date., after giving effect to the amendment of the Existing Loan Agreement contemplated hereby:
(fi) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document Section 4 shall be true and correct in all material respects on and as of the date hereof; provided thatAmendment Effective Date as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they shall be true and correct after giving effect in all material respects as cases to any standard(s) of such earlier date; provided, further, that, any representation and warranty that is qualified materiality contained in the Agreement as to “Material Adverse Effect” or similar language shall be true such representations and correct in all respects on such respective dates.warranties; and
(gii) No There exist no Events of Default shall exist, or events that with the passage of time would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% Event of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective DateDefault.
Appears in 1 contract
Samples: Loan and Security Agreement (Syndax Pharmaceuticals Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”) on which, which date is August 8and only if, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received this Amendmentreceived, duly executed in form and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) substance satisfactory to the Administrative Agent, counterparts of this Amendment executed by each of the Loan Parties and those Lenders comprising Required Lenders.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect received, in form and substance satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkAdministrative Agent, New York time) on the Business Day prior to the requested date counterparts of each of the Amendment No. 3 Effective DatePledge Agreement, the Security Agreement and the Intercreditor Agreement executed by each of the parties thereto.
(c) The Administrative Agent shall have received, on behalf of itself, be satisfied that all filings necessary or desirable in order to perfect and protect the First Lien Collateral Agent first priority liens and security interests created under the Pledge Agreement and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated Security Agreement will be made promptly following the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative AgentDate.
(d) The Administrative Agent shall have received such (x) certificates of good standing (received, in form and substance satisfactory to the extent such concept existsAdministrative Agent, (i) from the applicable secretary of state an amendment of the state of organization of 2019 Term Loan Agreement and (ii) an amendment to the 2016 Term Loan Agreement, in each Loan Party, certificates of resolutions or case modifying the underlying agreement to account for the terms herein and making certain other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the corresponding modifications.
(e) The Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and shall have received (yi) a certificate, dated as of the Amendment No. 3 Effective Date, certificate signed by a Responsible Officer of the BorrowerBorrower stating that the Mortgages and Assignments of Leases on the Initial Mortgaged Properties, confirming satisfaction in substantially the form attached thereto (the “Approved Real Estate Documents”), have been approved by the Borrower for release and recording in accordance herewith and (ii) original signature pages for each of the conditions set forth Approved Real Estate Documents which the Agents shall hold in Sections 4(f) and (g).
escrow in accordance with this subsection (e) Payment ). The parties acknowledge and agree that the release from escrow of all reasonable fees the original signature pages for the Approved Real Estate Documents shall be in the Agents’ sole discretion and expenses due shall not be subject to any condition, occurrence or consent, and the Loan Parties hereby irrevocably authorize the Agents to attach the original signature pages to the applicable Approved Real Estate Documents upon the release thereof from escrow. Notwithstanding the foregoing, the original signature pages shall not be released from escrow and the Approved Real Estate Documents will not be filed or recorded unless and until the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, reasonably concludes that the Lenders holding Term B-2 Loans immediately before have completed their required due diligence in respect of the Amendment NoFlood Laws. 3 Effective Date under For the existing Credit Agreement shall have been paid all accrued avoidance of doubt, no Lien or security interest provided for in any Approved Real Estate Document is or will be effective until the signature pages are released from escrow and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Dateattached thereto.
(f) The representations (i) the fees provided for in Section 9(a) and warranties (ii) all of the Borrower and each other Loan Party contained in Article V reasonable out-of-pocket expenses of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counselincluding the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Datebeen paid in full.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become be effective as of the date first date set forth above (such date being referred to as the “Amendment No. 3 Effective Date”), which date is August 8, 2014) when each upon the satisfaction of the following conditions shall have been satisfiedconditions:
(a) The Administrative Agent the Purchasers shall have received this Amendmentexecuted originals, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) satisfactory to the Required Lenders Holders in all respects, of this Amendment and the Seventh Amendment to the Credit Agreement, dated as of even date herewith, among the Company, Cxxxxxxxx Weavers, Inc., Hamco, Inc. and Crown Crafts Infant Products, Inc., as borrowers, Wachovia Bank, National Association (Gsuccessor by merger to Wachovia Bank, N.A.), as agent, and Wachovia Bank, National Association (successor by merger to Wachovia Bank, N.A.), Banc of America Strategic Solutions, Inc. (assignee of Bank of America, N.A.) and The Prudential Insurance Company of America, as lenders, each agreement being dated the Administrative AgentEffective Date, in form and substance satisfactory to the Purchasers.
(b) The Administrative Agent Company shall have received a Committed Loan Notice with respect paid all costs and expenses (including attorney’s fees and expenses) incurred by any Purchaser through the Effective Date, pursuant to statements submitted to the Incremental Term B-2 Loans not later than 5:30 p.m. Company (New Yorkwhich statements may include estimates of time and expenses to be incurred on and after the dates of posting of actual time and expenses set forth therein, New York time) on the Business Day prior which estimated amounts shall be subject to the requested date of the Amendment No. 3 Effective Datesubsequent adjustment to reflect actual time and expenses subsequently posted).
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document herein shall be true and correct in all material respects on and as of the date hereof; provided thatthere shall exist on the date hereof, after giving effect to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to no Event of Default or Default; there shall exist no material adverse change in the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulationsbusiness, including without limitation properties, prospects, operations or condition, financial or otherwise, of the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (Company or its Subsidiaries since March 28, 2004 other than GECC, as reported by the Company in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page quarterly reports on Form 10-Q filed with the Securities and Exchange Commission for quarterly periods subsequent to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.March
Appears in 1 contract
Samples: Subordinated Note and Warrant Purchase Agreement (Crown Crafts Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Fourth Amendment No. 3 Effective Date”) when, which date is August 8and only when, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received this Amendmentreceived, duly dated as of the Fourth Amendment Effective Date, an executed counterpart hereof from each of the Borrowers and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative AgentLenders.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New Yorkreceived, New York time) on the Business Day prior to the requested date dated as of the Fourth Amendment No. 3 Effective Date, an executed counterpart of the Consent, Reaffirmation, and Agreement of Guarantor from each Guarantor.
(c) The Administrative Agent shall have received, on behalf dated as of itself, the First Lien Collateral Agent and the LendersFourth Amendment Effective Date, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated executed counterpart of the Amendment No. 3 Effective Date to Security Agreement, duly completed and addressed to executed by the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative AgentCredit Parties.
(d) The Administrative Agent shall have received such (x) certificates a certificate of good standing (to the extent such concept exists) from the applicable secretary or an assistant secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated executing any Credit Documents as of the Fourth Amendment No. 3 Effective Date, signed by a Responsible Officer dated the Fourth Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that the organizational documents of such Credit Party have not been amended, amended and restated, or otherwise modified since the BorrowerThird Amendment Effective Date (and if such organizational documents have been amended, confirming satisfaction of the conditions set forth in Sections 4(famended and restated, or otherwise modified, attaching copies thereof) and (g)ii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above, as applicable.
(e) Payment of all reasonable fees and expenses due The Borrowers shall have paid to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower)Agent, in each case immediately available funds, the $25,000,000 amount required to be paid on or before April 30, 2010 pursuant to Section 2.6(a) of the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective DateAgreement.
(f) The representations and warranties of Borrower shall have paid to the Borrower and each other Loan Party contained Administrative Agent, in Article V of the Credit Agreement and any other Loan Document immediately available funds, no less than $65,000,000, which amount shall be true and correct in all material respects on and as of applied by the date hereof; provided that, Administrative Agent to non-permanently reduce the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective datesRevolving Loans.
(g) No Default The Borrowers shall existhave paid to the Administrative Agent, or would result from for the effectiveness pro-rata benefit of each Lender who approves this Amendment or from Amendment, a nonrefundable fee in the application amount of $1,000,000, which fee shall be deemed fully earned as of the proceeds thereofFourth Amendment Effective Date.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by To the Borrower for each Lender that requests such a Note extent invoiced at least two one (1) Business Days Day prior to the Fourth Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Borrowers shall have paid all reasonable out-of-pocket costs and expenses of the Administrative Agent shall have receivedin connection with the preparation, prior to the effectiveness negotiation, execution and delivery of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (including, without limitation, the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent reasonable fees in an amount equal to 0.25% and out-of-pocket expenses of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to counsel for the Amendment No. 3 Effective DateAdministrative Agent with respect thereto).
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date upon receipt by Access Capital (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014unless otherwise waived by Access Capital in writing) when each of the following conditions shall have been satisfied:
(all in form and substance acceptable to Access Capital): (a) The Administrative Agent shall have received this Amendment, Amendment duly executed and delivered by (A) the BorrowerCompany, (B) Holdingseach Responsible Party and Access Capital, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date executed approvals and consents required by Section 1.1 of the Amendment No. 3 Effective Date.
Share Purchase Agreement, (c) The Administrative Agent shall an acknowledgment letter executed by SD, Company, TRC and ICCI confirming that all closing conditions set forth in the Share Purchase Agreement have received, on behalf of itself, the First Lien Collateral Agent been satisfied and the Lenderstransactions contemplated by the Share Purchase Agreement have been consummated, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent all such documentation as Access Capital shall have received require for each of ICCI and TRC to grant to Access Capital a first priority perfected security interest in each such entity’s assets, (xe) certificates pro-forma financial statements for ICCI for the six (6) full calendar month period following the effective date hereof, (f) copies of good standing (all Schedules, Exhibits and amendments to the extent Share Purchase Agreement, (g) copies of all amendments to Company’s and TRC’s certificate of incorporation and bylaws as contemplated by Section 7.1(d) to the Share Purchase Agreement (which such concept existsamendments shall not modify in any manner whatsoever the name of any such entity or modify any other provision thereof deemed material by Access Capital), (h) from copies of all documentation required to satisfy the applicable secretary requirements of state Section 10 of the state of organization of each Loan PartyShare Purchase Agreement, certificates of (i) corporate resolutions or other actionfor Company, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as ICCI and TRC authorizing the Administrative Agent may reasonably require evidencing transactions contemplated by the identity, authority Share Purchase Agreement and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the this Amendment and (yj) a certificate, dated as consent and amendment fee in the amount of $15,000 (the “Consent and Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the BorrowerFee”), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document which such fee shall be true and correct deemed earned in all material respects full on and as of the date hereof; provided that, shall not be subject to the extent that such representations rebate or pro-ration for any reason and warranties specifically refer to an earlier date, they shall be true payable by the Company to Access Capital in ten consecutive monthly installments of $1500 each, the first payment of which shall commence on March 1, 2009 and correct in all material respects as the remaining payments of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language which shall be true and correct in made on the first day of each succeeding month, all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application which payments may be charged when due by Access Capital to Company’s account. Any unpaid portion of the proceeds thereof.
Consent and Amendment Fee shall be due and payable in full upon the earlier to occur of (h1) The Administrative Agent the occurrence of an Event of Default, (or its counsel2) shall have received a Note executed termination of the ARPA and (3) unwinding of the transactions contemplated by the Borrower for each Lender that requests such a Note at least two Business Days prior to Share Purchase Agreement in accordance with the Amendment No. 3 Effective Dateterms of Section 6 below.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Consent, Amendment and Joinder Agreement (International Consolidated Companies, Inc.)
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 1 Effective Date”, which date ) is August 8, 2014) when each subject to the satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received counterparts of this Amendment, Amendment duly executed and delivered by (A) the BorrowerCompany, (B) Holdingseach of the Lenders, (C) each Issuing Bank, the Guarantors, (D) the Incremental Term B-2 Swingline Lender, (F) the Required Lenders and (G) the Administrative AgentAgent and acknowledged and agreed to by the New Borrowing Subsidiaries.
(b) The Administrative Agent shall have received a Committed Loan Notice with Borrowing Subsidiary Agreement in respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of each of the Amendment No. 3 Effective DateNew Borrowing Subsidiaries duly executed by such New Borrowing Subsidiary.
(c) The Administrative Agent shall have receivedreceived copies, on behalf certified by the Secretary or Assistant Secretary of itselfeach New Borrowing Subsidiary (or, in the First Lien Collateral Agent case of the Luxembourg Borrower, a Manager), of its Board of Directors’ resolutions (and the Lendersresolutions of other bodies, an opinion from Ropes & Xxxx LLP, New York if any are deemed necessary by counsel for the Administrative Agent) approving the Borrowing Subsidiary Agreement and any other Loan Parties, dated Documents to which such New Borrowing Subsidiary is becoming a party and such documents and certificates as the Amendment No. 3 Effective Date and addressed Administrative Agent or its counsel may reasonably request relating to the Administrative Agentorganization, the First Lien Collateral Agent existence and the Lenders, in form and substance reasonably satisfactory to the Administrative Agentgood standing of such New Borrowing Subsidiary.
(d) The Administrative Agent shall have received such (x) certificates an incumbency certificate, executed by the Secretary or Assistant Secretary of good standing (to each New Borrowing Subsidiary, which shall identify by name and title and bear the extent such concept exists) from the applicable secretary of state signature of the state officers of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof such New Borrowing Subsidiary authorized to act as request Borrowings under the Credit Agreement and sign the Borrowing Subsidiary Agreement and the other Loan Documents to which such New Borrowing Subsidiary is becoming a Responsible Officer in connection with this Amendment and (y) a certificateparty, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to upon which certificate the Administrative Agent and the Arrangers (as agreed Lenders shall be entitled to rely until informed of any change in writing between by the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective DateCompany or such New Borrowing Subsidiary.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(je) The Administrative Agent shall have received opinions of counsel to each New Borrowing Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent and its counsel, with respect to the laws of its jurisdiction of organization and such other matters as are reasonably requested by counsel to the Administrative Agent and addressed to the Administrative Agent and the Lenders.
(f) The Administrative Agent shall have received payment of the Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable and documented out-of-pocket fees and expenses of counsel for the account of each Lender (other than GECC, Administrative Agent) in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to connection with this Amendment and the other Loan Documents, and for which invoices have been presented at least one (the “Consent”1) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Day prior to the Amendment No. 3 1 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
Conditions of Effectiveness. This First Amendment shall become effective as of the first date (such date being referred to as of effectiveness, the “First Amendment No. 3 Effective Date”, ) on which date is August 8, 2014) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received executed counterparts of this First Amendment, each duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (Gi) the Administrative Agent, (ii) a Responsible Officer of each Loan Party and (iii) Consenting Lenders constituting the Required Lenders.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect fully executed copy of each of the following documents, duly executed by the parties thereto, in form and substance reasonably satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. Administrative Agent (New Yorkeach of which, New York time) subject to the proviso below, shall be in full force and effect or all conditions precedent to the effectiveness thereto will be satisfied on the Business Day prior First Amendment Effective Date); provided that if the Initial Cash Pooling Documents will not be entered into on the First Amendment Effective Date, then the Administrative Agent shall have received final execution versions of such documents instead of fully executed copies:
(i) the First Amendment to the requested date Security Agreement; and
(ii) each of the Initial Cash Pooling Documents, as in effect on the First Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, also received the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lendersfollowing, in form and substance reasonably satisfactory to the Administrative AgentAgent and its legal counsel:
(i) a certificate of an officer of the Company, dated as of the First Amendment Effective Date, (A) certifying that (i) true and complete copies of the Organization Documents of each Loan Party, including all amendments thereto (if any), are attached thereto, (ii) no such Organization Documents have been amended, modified or supplemented since the date reflected thereon and are in full force and effect as of the First Amendment Effective Date, (iii) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, duly adopted by the board of directors, board of managers or other applicable governing body of each Loan Party, as delivered to the Administrative Agent on the Restatement Effective Date, approving the terms of, and authorizing the execution, delivery and performance of, amendments to the Credit Agreement and Security Agreement as provided for therein, which includes this First Amendment, the Credit Agreement and the First Amendment to Security Agreement, which resolutions or written consent have not been modified, rescinded or amended and remain in full force and effect as of the First Amendment Effective Date, and authorize a specified person or persons to execute this First Amendment, the First Amendment to Security Agreement and any other documents and notices to be signed and/or dispatched by it under or in connection with this First Amendment and the First Amendment to Security Agreement on its behalf, in accordance with the applicable Organization Document of such Company as in effect at the time of adoption thereof, and (iv) attached thereto are documents and certifications evidencing that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation and (B) confirming the accuracy of the matters set forth in Section 5(e) and (f) hereof.
(d) The Unless waived by the Administrative Agent, the Company shall have paid all Attorney Costs of the Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from invoiced prior to or on the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this First Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings of this First Amendment (provided that such estimate shall not thereafter preclude a Responsible Officer final settling of accounts between the Borrower, confirming satisfaction of Company and the conditions set forth in Sections 4(f) and (gAdministrative Agent).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower Company and each other Loan Party contained in Article V of Section (6) below or which are contained in the Credit Agreement Agreement, shall (i) with respect to representations and any other Loan Document shall warranties that contain a materiality qualification or are qualified by Material Adverse Effect, be true and correct and (ii) with respect to representations and warranties that do not contain a materiality qualification and are not qualified by Material Adverse Effect, be true and correct in all material respects respects, in each case, on and as of the date hereof; provided thatFirst Amendment Effective Date (or, to the extent that if such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates).
(gf) No Default shall exist, or would result from the effectiveness Event of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days Default exists immediately prior to the First Amendment NoEffective Date or would exist immediately after giving effect to this First Amendment and the First Amendment to Security Agreement. 3 Effective Date.
Upon such effectiveness, (i) To this First Amendment shall be a binding agreement between the extent reasonably requested by parties hereto and their permitted assigns under the Arrangers in writing not less than five Credit Agreement (5ii) Business Days prior the First Amendment to the Amendment No. 3 Effective Date, the Administrative Security Agent shall have receivedbe a binding agreement between the parties thereto and their permitted assigns under the Security Agreement and (iii) each party hereto agrees that its consents to this First Amendment and the First Amendment to Security Agreement, prior to the effectiveness of this Amendmentonce delivered, all documentation are irrevocable and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) may not be withdrawn. The Administrative Agent shall have received for promptly notify the account Company and the Lenders of each Lender (other than GECCthe First Amendment Effective Date in writing, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of and such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Datenotice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and Waiver shall become effective as of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each upon satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received six (6) copies of this Amendment, Amendment and Waiver duly executed by Borrowers, Guarantors and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.Lenders;
(b) The Administrative Agent GMACCF shall have received a Committed fee letter dated the Amendment 3 Closing Date between the Loan Notice Parties and GMACCF together with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date payment of the Amendment No. 3 Effective Datefees referred to therein.
(c) The Administrative Agent shall have received, on behalf for the prorata benefit of itselfLenders with Commitments to fund Revolving Advances, an amendment fee equal to $95,000, which shall be charged to Borrowers' Account;
(d) Borrowers shall have executed and delivered to GMACCF the First Lien Collateral Incremental Term Note, in the form annexed hereto as Exhibit 2.3(A), properly completed with respect to the applicable amount and date;
(e) Bucyrus, Holdings and BNY Midwest Trust Company, as successor to Harris Bank and Trust, shall have executed and dexxxxxxd to Agent an Amended and Restated Interest Payment Deferral Agreement, in the form annexed hereto as Exhibit A, setting forth the agreement of the parties thereto, Agent and the Lenders with respect to payment of interest on that portion of the Senior Unsecured Note which is held by Holdings and Holdings shall have executed the side letter in favor of GMACCF relating to the Amended and Restated Interest Payment Deferral Agreement;
(f) Agent shall have received four (4) copies of the Collateral Sharing Agreement in substantially the form of Exhibit 1 to this Amendment and Waiver, duly executed by Agent and Lenders;
(g) Agent shall have received Secretary's Certificates from each Loan Party authorizing the execution, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the delivery and performance of Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, Amended and Restated Interest Payment Deferral Agreement in form and substance reasonably satisfactory acceptable to the Administrative Agent.; and
(dh) The Administrative Agent shall have received such (x) certificates opinions of good standing (counsel from counsel to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority in form and capacity of each Responsible Officer thereof authorized substance satisfactory to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g)Agent.
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Loan and Security Agreement (Bucyrus International Inc)
Conditions of Effectiveness. This The effectiveness of this Third Amendment shall become effective as of (including the first date (such date being referred amendments contained in Section 1 hereof and agreements contained in Section 2 hereof) are subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfied:(the date of satisfaction of such conditions being referred to herein as the “Third Amendment Effective Date”):
(a) The Administrative this Third Amendment shall have been duly executed by the Borrower, each Guarantor, the Lenders, the Incremental Lenders, the Facility Agent and the Security Trustee (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the Facility Agent;
(b) a duly executed original of a Guarantor Accession Agreement made among the Additional Guarantors and the Facility Agent;
(c) the Facility Agent shall have received this Amendment(i) a certificate of an officer or an officer of the sole member, duly executed and delivered by as the case may be, of each Security Party dated the Third Amendment Effective Date, certifying (A) either (i) that attached thereto is a true and complete copy of each Organizational Document of such Security Party, or (ii) that the Borrowercopies of such Security Party’s Organizational Documents as previously certified and delivered to the Facility Agent on the Closing Date (or, if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the Third Amendment Effective Date, without modification or amendment since such prior date of certification and delivery, (B) Holdingsthat attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or sole member of such Security Party authorizing the execution, delivery and performance of this Third Amendment and the other Loan Documents (including, if applicable, as amended by this Third Amendment) to which such Security Party is a party and, in the case of the Borrower, the borrowing of the Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the Guarantorsincumbency and specimen signature of each officer, director and attorney-in-fact authorized to execute this Third Amendment and any Loan Document or any other document delivered in connection herewith or therewith on behalf of such Security Party, (Dii) a certificate as to the goodstanding of each Security Party as of a date reasonably near to the Third Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of its jurisdiction of incorporation and (iii) an original or certified copy power of attorney under which any Loan Document is executed on behalf of a Security Party;
(d) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Facility Agent shall have received copies of all consents which a Committed Security Party requires to enter into, or make any payment under, any Loan Notice with respect to Document, each certified as of a date reasonably near the Incremental Term B-2 Loans not later than 5:30 p.m. (New YorkThird Amendment Effective Date by an authorized person of such party as being a true and correct copy thereof, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.or certification by such authorized person that no such consents are required;
(ce) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Facility Agent shall have received such (x) certificates documentation and other evidence as is reasonably requested by the Facility Agent or a Lender in order for each to carry out and be satisfied with the results of good standing (all necessary “know your customer” or other checks which it is required to carry out in relation to the extent such concept exists) from transactions contemplated by this Third Amendment and the applicable secretary of state other Loan Documents, including without limitation obtaining, verifying and recording certain information and documentation that will allow the Facility Agent and each of the state Lenders to identify each Security Party in accordance with the requirements of organization the PATRIOT Act;
(f) two valuations, each dated no more than thirty (30) days prior to the Third Amendment Effective Date, addressed to the Facility Agent (at the expense of the Borrower) by an Approved Broker indicating the Fair Market Value of each of the Delivered Vessels, the Additional Young Vessels identified in Annex I to the First Amendment and each of the Additional Young Vessels to be financed by the 2020 Incremental Commitments;
(g) the Facility Agent shall have received in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this Third Amendment, and evidence that such amendment has been duly recorded in accordance with the Laws of the Approved Flag;
(h) evidence that each Additional Guarantor who is the owner of an Additional Young Vessel has duly opened an Operating Account and has delivered to the Facility Agent all resolutions, signature cards and other documents or evidence required in connection with the opening, maintenance and operation of such accounts with the Account Bank;
(i) a duly executed original of (i) an amendment to the Membership Interest Pledge and (ii) an Account Pledge with respect to each Additional Guarantor who will be the owner of an Additional Young Vessel, and of any documents required to be delivered thereunder;
(j) the Borrower shall have paid all costs, fees, expenses and other amounts due and payable pursuant to the Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority Documents and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Third Amendment and (y) a certificateincluding without limitation upfront fees payable in connection with that certain Fee Letter, dated as of June 9, 2020, made among the Amendment No. 3 Effective DateBorrower and the Facility Agent, signed relating to upfront fees in connection with this Third Amendment);
(k) the Facility Agent shall have received such legal opinions and other documents reasonably requested by a Responsible Officer of the Borrower, confirming satisfaction of the conditions Facility Agent in connection with this Third Amendment; and
(l) (i) all representations and warranties set forth in Sections 4(f) and (g).
(e) Payment Section 3 of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the this Third Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date hereof; provided thatThird Amendment Effective Date with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” (or similar language shall be true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such respective dates.
earlier date) and (gii) No no Default shall exist, have occurred and be continuing or would result from occur after giving effect to the effectiveness Incremental Commitments or to the incurrence of the Loans pursuant to this Third Amendment or from and the application of the proceeds thereoftherefrom.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The obligations of the 2021 Incremental Term Lenders to make 2021 Incremental Term Loans under the Amended Credit Agreement and the amendments to the Credit Agreement contained in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 3 2 Effective Date”, ) on which date is August 8, 2014) when each of the following conditions shall have been satisfied:satisfied (or waived by the Required Lenders and the 2021 Incremental Term Lenders):
(a) The Administrative Agent shall have received counterparts of (i) this Amendment, duly Amendment executed and delivered by (A) the Borrower, (B) Holdings, (C) the GuarantorsAdministrative Agent, (D) the each 2021 Incremental Term B-2 Lender (in its capacity as such) and each Lender (other than in its capacity as a 2021 Incremental Term Lender) consenting to this Amendment (the “Consenting Lenders”), (F) the such Consenting Lenders and 2021 Incremental Term Lenders collectively constituting Required Lenders and (Gii) the Administrative AgentGuarantor Consent and Reaffirmation attached hereto (the “Guarantor Consent”) executed by each Guarantor.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect customary legal opinion from (i) Dxxxx Xxxx & Wxxxxxxx LLP, counsel to the Incremental Term B-2 Loans not later than 5:30 p.m. Loan Parties and (New York, New York timeii) on the Business Day prior each local counsel to the requested date of the Amendment No. 3 Effective DateLoan Parties listed on Schedule 5(b) to this Amendment.
(c) The Administrative Agent shall have received, on behalf of itselfwith respect to each Loan Party, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan PartyParty (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates and/or or other certificates of Responsible Officers of each Loan Party as certifying true and complete copies of the Administrative Agent may reasonably require Organizational Documents attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Guarantor Consent.
(yd) The Administrative Agent shall have received (i) a certificateCommitted Loan Notice no later than 1:00 p.m., dated as New York time, three (3) Business Days (in the case of Eurodollar Rate Loans) or two (2) Business Days (in the case of Base Rate Loans), in each case prior to the requested date of the Amendment No. 3 Effective Date, signed by a Responsible Officer Borrowing in respect of the Borrower, confirming satisfaction 2021 Incremental Term Loans and (ii) an Incremental Loan Request; provided that this Amendment shall be deemed to be the Incremental Loan Request with respect to the 2021 Incremental Term Loans for purposes of the conditions set forth in Sections 4(f) Amended Credit Agreement and (g)all parties hereto hereby agree that this Amendment shall satisfy all requirements under the Amended Credit Agreement for the Incremental Loan Request with respect to the 2021 Incremental Term Loans.
(e) Payment of all reasonable All fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case including fees required to be paid on pursuant to the Amendment No. 3 Effective Date fee letter dated as of the date hereof, by and among the Borrower and the 2021 Incremental Term Lenders) and expenses (in the case of expenses, to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
three (f) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (53) Business Days prior to the Amendment No. 3 2 Effective Date, Date (except as otherwise reasonably agreed by the Administrative Agent shall have received, Borrower)) required to be paid under the Credit Agreement on or prior to the effectiveness Amendment No. 2 Effective Date shall have been paid, or shall be paid substantially concurrently with the Borrowing of this Amendment, all documentation and other information with respect to 2021 Incremental Term Loans on the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActAmendment No. 2 Effective Date.
(jf) The Administrative Agent shall have received for the account of each Lender (other than GECCConsenting Lender, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount amendment fee equal to 0.25% of the aggregate amount of such Consenting Lender’s principal amount of outstanding Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 2 Effective Date.
(g) To the extent not previously received, the Administrative Agent shall have received at least two (2) Business Days prior to the Amendment No. 2 Effective Date (or such shorter period as may be acceptable to the Administrative Agent) all documentation and other information in respect of the Borrower and the Guarantors (including, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Borrower) required under applicable “know your customer” and anti-money laundering rules and regulations (including the USA PATRIOT Act and Beneficial Ownership Regulations) that has been reasonably requested in writing by the Administrative Agent at least three (3) Business Days prior to the Amendment No. 2 Effective Date.
(h) The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower (after giving effect to the Amendment and the 2021 Incremental Term Loans) substantially in the form attached as Exhibit I to the Amended Credit Agreement (or, at the option of the Borrower, a third party opinion as to the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis). For purposes of determining compliance with the conditions specified in this Section 4, the Administrative Agent, each Term Lender and each 2021 Incremental Term Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent, a Term Lender or a 2021 Incremental Term Lender, as applicable, unless, in the case of a Term Lender or a 2021 Incremental Term Lender, the Administrative Agent shall have received notice from such Term Lender or 2021 Incremental Term Lender prior to the proposed Amendment No. 2 Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: First Lien Credit Agreement (Convey Holding Parent, Inc.)
Conditions of Effectiveness. This Amendment shall become effective as when, and only when, the Bank shall have received counterparts of this Amendment executed by the first date (such date being referred to as Borrower and the “Amendment No. 3 Effective Date”Bank, which date is August 8and Section 1 hereof shall become effective when, 2014) when each and only when, the Bank shall have additionally received all of the following conditions documents, each document (unless otherwise indicated) being dated the date of receipt thereof by the Bank (which date shall have been satisfiedbe the same for all such documents), in form and substance satisfactory to the Bank:
(a) The Administrative Agent shall have received this Amendment, duly executed Amended and delivered by (A) Restated Note in the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agentform of EXHIBIT A hereto.
(b) The Administrative Agent shall have received a Committed Loan Notice executed Amended and Restated Pledge Agreement in the form of EXHIBIT B hereto, together with respect certificates representing the Pledged Shares referred to the Incremental Term B-2 Loans not later than 5:30 p.m. (New Yorktherein, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Dateaccompanied by undated stock powers executed in blank.
(c) The Administrative Agent shall have received, on behalf executed Fifth Warrant in the form of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative AgentEXHIBIT C hereto.
(d) The Administrative Agent shall have received such (x) certificates executed Amended and Restated Registration Rights Agreement in the form of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g)EXHIBIT D hereto.
(e) Payment Evidence of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to applicable insurance regulatory approvals, if any, which are necessary or required in writing between the Administrative Agent and/or the Arrangers and connection with the Borrower)'s execution, in each case required to be paid on delivery and performance of the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective DateLoan Documents.
(f) A schedule of insurance then in effect pursuant to Section 7.5 of the Existing Credit Agreement.
(g) Certified copies of (i) the resolutions of the Borrower approving this Amendment and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and the matters contemplated hereby.
(h) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower, authorized to sign this Amendment and the other documents to be delivered hereunder.
(i) A certificate of existence for each of the Borrower, Standard Life, Standard Marketing and Xxxxx National and Savers Life Insurance Company.
(j) A favorable opinion of counsel for the Borrower (which may be delivered by in-house counsel) to the effect that this Amendment, and the Amended and Restated Note have been duly authorized, executed and delivered by the Borrower, and such instruments constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, with references therein to the Credit Agreement to mean the Existing Credit Agreement as amended by this Amendment.
(k) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) The representations and warranties contained in herein, in Article 6 of the Borrower Existing Credit Agreement and in each other Loan Party contained in Article V of the Credit Agreement and any other Loan Document shall be are true and correct in all material respects on and as of the date hereof; provided that, to the extent that of such representations certificate as though made on and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided(ii)No event has occurred and is continuing which constitutes a Default or Event of Default; and (iii)There has been no material adverse change in the business, furthermanagement, thatoperations, properties, prospects or condition (financial or otherwise) of the Borrower or any representation and warranty that is qualified as to “Material Adverse Effect” of its respective Affiliates or similar language shall be true and correct in all respects on such respective datesSubsidiaries since March 8, 1998.
(gl) No Default shall exist, or would result from Payment to the effectiveness Bank of the Closing Fee pursuant to Section 1 (a)(iii) of this Amendment or from the application of the proceeds thereofAmendment.
(hm) The Administrative Agent (or its counsel) shall have received a Note executed Any other closing items reasonably required by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective DateBank.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Revolving Line of Credit Agreement (Standard Management Corp)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 3 4 Effective Date”, which date is August 8March 11, 20142016) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment, Amendment duly executed and delivered by (A) the Borrower, (B) Holdingsthe MLP, (C) the Guarantors, Consenting Lender and (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent itself and the Lenders, an opinion from Ropes Xxxxxx & Xxxx Xxxxxxx LLP, special New York counsel for to the Loan Credit Parties, dated as of the Amendment No. 3 4 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the LendersConsenting Lender, in form and substance reasonably satisfactory to the Administrative Agent.
(dc) The Administrative Agent shall have received such (xi) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (yii) a certificate, dated as of the Amendment No. 3 4 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f2(e) and (g)f) of this Amendment.
(ed) Payment by the Borrower of all reasonable fees and expenses due to the Administrative Agent and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower“Arranger”), in each case required to be paid on the Amendment No. 3 Effective Date and including, to the extent invoiced at least two Business Days prior invoiced, reimbursement or payment of all out-of-pocket expenses (including the legal fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective DateAdministrative Agent).
(fe) The representations and warranties of the Borrower and each other Loan Credit Party contained in Article V Section 8 of the Credit Agreement and (as amended hereby) or any other Loan Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date hereof; provided thatAmendment No. 4 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 in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(gf) No After giving effect to this Amendment, no Default shall existor Event of Default exists, or would result from the effectiveness of this Amendment or from the application of the proceeds thereofAmendment.
(hg) The Administrative Agent With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (or its counsel) shall have received together with a Note notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower for and each Lender that requests such applicable Credit Party) together with a Note at least two Business Days prior copy of, or certificate as to coverage under, and a declaration page relating to, the Amendment No. 3 Effective Date.
insurance policies required by Section 9.03 of the Credit Agreement (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each of which (i) To shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), (ii) shall name the extent reasonably requested Collateral Agent, on behalf of the Guaranteed Creditors, as additional insured, (iii) in the case of flood insurance, shall (a) identify the address of each property located in a special flood hazard zone, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by the Arrangers applicable law and (iv) shall be otherwise in writing not less than five (5) Business Days prior form and substance satisfactory to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActAgent.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Second Amendment shall become effective as of (including the first date amendments contained in SECTION 1 and agreements contained in SECTION 2) is subject to the satisfaction (such date being referred to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014or written waiver) when each of the following conditions shall have been satisfied:(the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) This Second Amendment shall have been duly executed by the Borrowers, the Subsidiary Guarantors and the Pro Rata Agent (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Pro Rata Agent and the Lenders under the Credit Agreement consisting of at least the Required Pro Rata Facility Lenders immediately prior to the Second Amendment Effective Date;
(b) Rabobank, as Repricing Arranger, shall have received all fees due and payable under that certain engagement letter, dated as of February 27, 2020, by and among Parent and Rabobank (the “Second Amendment Engagement Letter”);
(c) The Administrative Pro Rata Agent shall have received this Amendment, duly executed and delivered by favorable legal opinions of (A) Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to the BorrowerLoan Parties, (B) HoldingsXxxxx & Xxxxxx, L.L.P., Nevada counsel to the Loan Parties, (C) Xxxxxx and Calder, Cayman Islands counsel to the GuarantorsLoan Parties, and (D) DLA Piper Luxembourg S.à x.x., Luxembourg counsel to the Incremental Term B-2 LenderLoan Parties, (F) with respect to the Required Lenders capacity of the Luxembourg Loan Parties to enter into the Loan Documents and (G) the Administrative subsistence of the existing security, in each case in form and substance reasonably satisfactory to the Pro Rata Agent.;
(bd) The Administrative Pro Rata Agent shall have received a Committed Loan Notice with respect certificate signed by a Responsible Officer of the Borrowers as to the Incremental Term B-2 Loans not later than 5:30 p.m. matters set forth in paragraphs (New York, New York timeg) on the Business Day prior to the requested date and (h) of the Amendment No. 3 Effective Date.this SECTION 3;
(ce) The Administrative Pro Rata Agent shall have received, on behalf received (I) a certificate dated as of itself, the First Lien Collateral Agent and Second Amendment Effective Date of the Lenders, corporate secretary or an opinion from Ropes & Xxxx LLP, New York counsel for assistant or associate corporate secretary or director (or such other officer reasonably acceptable to the Pro Rata Agent) of each of the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Pro Rata Agent, certifying (i) that either (A) attached thereto is a true and complete and up to date copy of the articles or certificate of incorporation, memorandum and articles of association or other comparable organizational documents including any certificate on change of name and all amendments thereto of such Loan Party certified (other than in the case of any Loan Party that is a Cayman Islands exempted company) as of a recent date by the secretary of state (or comparable Governmental Authority) of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification or (B) the articles or certificate of incorporation or other comparable organizational documents of such Loan Party delivered on the First Amendment Effective Date to the Pro Rata Agent have not been amended and are in full force and effect, (ii) that either (A) attached thereto is a true and complete copy of the bylaws or comparable governing documents of such Loan Party, as then in effect and as in effect at all times without amendment of supersession from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate or (B) that the bylaws or comparable governing documents of such Loan Party delivered on the Closing Date to the Pro Rata Agent have not been amended and are in full force and effect and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors or other comparable governing body or bodies of such Loan Party and, if applicable all the holders of the issued shares of such Loan Party, authorizing the execution, delivery and performance of this Second Amendment and any related Loan Documents to which it is a party, which are in full force and effect without amendment or supersession as of the date of the certificate, and as to the incumbency and genuineness of the signature of each officer, director or other comparable authorized manager or attorney of such Loan Party, executing this Second Amendment or any of such other Loan Documents, and attaching all such copies of the documents described above together with, in the case of the Loan Parties incorporated in the Cayman Islands, copies of their internal registers of directors and officers and registers of mortgages and charges and (II) in respect of (i) any Luxembourg Loan Party, (ii) WHBL Luxembourg S.à x.x., (iii) Herbalife Luxembourg Distribution S.à x.x., (iv) HLF Luxembourg Distribution S.à x.x. and (v) Herbalife Africa (together the “Luxembourg Entities” and each a “Luxembourg Entity”), a manager’s certificate dated as of the Second Amendment Effective Date signed by a manager of the relevant Luxembourg Entity, certifying the following items: (A) an up-to-date copy of the articles of association of the relevant Luxembourg Entity; (B) an electronic true and complete certified excerpt of the Luxembourg Companies Register pertaining to the relevant Luxembourg Entity dated as of the date of this Agreement; (C) an electronic true and complete certified certificate of non-registration of judgment (certificat de non-inscription d’une décision judiciaire) dated as of the date of this Agreement issued by the Luxembourg Companies Register and reflecting the situation no more than one Business Day prior to the date of this Agreement; (D) with respect to the Luxembourg Loan Parties only, true, complete and up-to-date board resolutions approving the entry by the relevant Luxembourg Loan Party into, among others, the Loan Documents; (E) the relevant Luxembourg Entity is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (F) (with respect to the Luxembourg Loan Parties only) a true and complete specimen of signatures for each of the managers or authorized signatories having executed for and on behalf of the relevant Luxembourg Loan Party the Loan Documents; (G) a certificate of the domiciliation agent or signed by a manager of the relevant Luxembourg Entity certifying, as the case may be, (i) due compliance by the relevant Luxembourg Entity with, and adherence to, the provisions of the Luxembourg Law dated 31 May 1999 concerning the domiciliation of companies, as amended, and the related circulars issued by the Commission de Surveillance du Secteur Financier or (ii) that the premises of the Luxembourg Entity are leased pursuant to a legal, valid and binding (and still in full force and effect) lease agreement and correspond to sufficient unshared office space, with a separate entrance and sufficient office equipment allowing it to effectively carry out its business activities;
(df) The Administrative Pro Rata Agent shall have received such (x) certificates a certificate as of a recent date of the good standing (to of each of the extent such concept exists) Loan Parties under the laws of its jurisdiction of organization, from the applicable secretary of state (or comparable Governmental Authority) of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party such jurisdiction as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act well as a Responsible Officer in connection with this Amendment and (y) a certificate, corresponding telephonic bring-down good standing memoranda dated as of the Second Amendment No. 3 Effective Date, signed by save that, no such bring-down good standing is required for any Loan Party that is a Responsible Officer Cayman Islands exempted company where the above recent date of the Borrower, confirming satisfaction certificate of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two good standing initially provided is no earlier than 10 Business Days prior to the Second Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.;
(fg) No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(h) The representations and warranties of the Borrower and each other Loan Party contained set forth in Article V SECTION 5(b) of this Second Amendment are true and correct and the Credit Agreement representations and any other warranties of each Loan Document shall be Party set forth in SECTIONS 5(a) and (c) of this Second Amendment are true and correct in all material respects on and as of the date hereof; provided thatSecond Amendment Effective Date (immediately after giving effect to this Second Amendment) as if made on as of such date, except in the case of any representations and warranties expressly stated to the extent that relate to a specific earlier date, in which case such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, in each case such materiality qualifier shall not be applicable to any representation and warranty representations or warranties that is already are qualified as to or modified by materiality or “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.”;
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(hi) The Administrative Pro Rata Agent (or its counsel) shall have received a Note executed by solvency certificate in the Borrower for each Lender that requests such form of Exhibit J of the Credit Agreement from a Note at least two Business Days prior to Responsible Officer of the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information Parent with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” solvency of the Parent and anti-money laundering rules and regulationsits Subsidiaries, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECCon a consolidated basis, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior after giving effect to the Amendment No. 3 Effective Date.Second Amendment;
Appears in 1 contract
Conditions of Effectiveness. This Second Amendment shall become be effective as of the Second Amendment Date first date (such date being referred set forth above, subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each of the following conditions shall have been satisfiedfollowing:
(a) The Administrative Agent Lender shall have received counterparts of this AmendmentSecond Amendment executed by all Lenders, duly executed the Borrower and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Incremental Term B-2 Lender, (F) the Required Lenders and (G) the Administrative Agent.;
(b) The Administrative Agent there shall have received a Committed Loan Notice with respect be no Default or Event of Default under the Credit Agreement after giving effect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.this Second Amendment;
(c) The Administrative Agent Borrower shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed cause to be delivered to the Administrative Agent, Lender a legal opinion in connection with the First Lien Collateral Agent and the Lenders, Second Amendment in form and substance reasonably satisfactory acceptable to the Administrative Agent.Special Counsel;
(d) The Administrative Agent Borrower shall have received such (x) certificates of delivered to the Administrative Lender a secretary's certificate, with incumbency provision, certifying the Borrower's good standing (to the extent such concept exists) from the applicable secretary of certificate in its state of organization, the state current Articles of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer Incorporation of the Borrower, confirming satisfaction the current bylaws of the conditions set forth in Sections 4(f) Borrower and (g).the effective corporate resolutions of the Borrower authorizing the Borrower to enter into this Second Amendment and deliver the Collateral;
(e) Payment of all reasonable fees and expenses due Borrower shall have caused to be delivered to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower)Lender a secretary's certificate, in with incumbency provision, from each case required to be paid on the Amendment No. 3 Effective Date and Guarantor certifying to the extent invoiced at least two Business Days prior effective corporate resolution of such Guarantor authorizing such Guarantor to the execute their respective acknowledgment of this Second Amendment No. 3 Effective Date. Substantially simultaneous with effectivenessand if applicable, the Lenders holding Term B-2 Loans immediately before delivery of the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.Collateral;
(f) The representations Borrower shall have paid an amendment fee to the Administrative Lender for itself and warranties of the Borrower and each other Loan Party contained in Article V of Lenders under the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.Agreement;
(g) No Default Borrower shall exist, or would result from have reimbursed the effectiveness of this Amendment or from the application Administrative Lender for all of the proceeds thereof.Administrative Lenders costs, fees and expenses, including attorney fees and expenses of Special Counsel, incurred in connection with due diligence, negotiations, drafting and the consummation of the Credit Agreement, the Loan Documents and this Second Amendment;
(h) The Administrative Agent (or its counsel) Lender and Lenders shall have received a Note executed by the Borrower for each in form and substance satisfactory to Administrative Lender that requests and Lenders, such a Note at least two Business Days prior to the Amendment No. 3 Effective Dateother documents and certificates as Lenders shall require.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Third Amendment shall become effective as of and the first date (such date being referred amendments and consent provided herein, are subject to as the “Amendment No. 3 Effective Date”, which date is August 8, 2014) when each satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received the following, each dated as of the Third Amendment Effective Date and in sufficient executed originals for each Lender:
(1) this Third Amendment, duly completed and executed and delivered by (A) the Borrower, each Guarantor, the Agent and each Required Lender;
(B) Holdings, (C2) the GuarantorsPXRE Bermuda Credit Enhancement Policy in the form of Exhibit A attached hereto, duly completed and executed by PXRE Bermuda;
(D3) the Incremental Term B-2 LenderGroup Guarantee in the form of Exhibit B attached hereto, duly completed and executed by PXRE Group;
(F4) the Required Lenders favorable opinion of Conyers Dill & Pearman, counsel to PXRE Group and (G) PXXX Xxxmxxx, in xxxx xeasonably satisfactory to the Administrative AgentAgent and substantially covering such opinion matters as the Agent may reasonably request.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect certificate, signed by the president or chief financial officer of each Credit Party, in form and substance satisfactory to the Incremental Term B-2 Loans not later than 5:30 p.m. Agent, certifying that (New Yorki) all representations and warranties of such Credit Party contained in this Third Amendment, New York time) on the Business Day prior Existing Credit Agreement (subject to the requested updating of the representations and warranties therein pursuant to this Third Amendment) and the other Credit Documents are true and correct as of the Third Amendment Effective Date, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, no Material Adverse Change has occurred since December 31, 2001, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, (iv) that the articles or certificate of incorporation of such Credit Party, as the case may be, have not been amended, revised or restated since the date of the Amendment No. 3 Effective DateSecond Amendment, and (v) that the bylaws, operating agreement or memorandum and articles of association, as applicable, of such Credit Party, as the case may be, have not been amended, revised or restated since the date of the Second Amendment.
(c) The Administrative Agent shall have receivedreceived certificates of the secretary, on behalf clerk or director, as applicable, or an assistant secretary, clerk or director, as applicable, of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenderseach Credit Party, in form and substance reasonably satisfactory to the Administrative AgentAgent and dated as of the Third Amendment Effective Date, certifying (i) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or duly authorized committee thereof) of such Credit Party authorizing the execution, delivery and performance of this Third Amendment, and (ii) as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Third Amendment.
(d) The Administrative Agent shall have received such a certificate of the secretary, clerk or director, as applicable, or an assistant secretary, clerk or director, as applicable, of PXRE Bermuda, in form and substance satisfactory to the Agent and dated no earlier than thirty (x30) certificates days prior to the Third Amendment Effective Date, certifying (i) that attached thereto is a true and complete copy of good standing (the articles or certificate of incorporation and all amendments thereto of PXRE Bermuda, certified, to the extent applicable, as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction or organization, and that the same has not been amended since the date of such concept existscertification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or memorandum and articles of association, as applicable, of PXRE Bermuda, as then in effect and as in effect at all times from the applicable secretary date on which the resolutions referred to in clause (iii) below were adopted to and including the date of state such certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or duly authorized committee thereof) of PXRE Bermuda authorizing the execution, delivery and performance of the state PXRE Bermuda Credit Enhancement Policy, and (iv) as to the incumbency and genuineness of organization the signature of each Loan Party, certificates officer of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as PXRE Bermuda executing the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g)PXRE Bermuda Credit Enhancement Policy.
(e) Payment PXRE Bermuda shall have duly complied with and performed all of all reasonable fees its agreements and expenses due to conditions set forth in the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case PXRE Bermuda Credit Enhancement Policy required to be paid complied with or performed by it on or prior to the Third Amendment No. 3 Effective Date and the Agent shall have received evidence satisfactory to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement it that premium due thereunder shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Datein full by PXRE Group.
(f) The Agent shall have received a Covenant Compliance Worksheet, duly completed and certified by the chief financial officer or treasurer of PXRE Group and the Borrower and in form and substance satisfactory to the Agent, demonstrating PXRE Group's and Borrower's compliance with the financial covenants set forth in Sections 6.1 through 6.4, determined on a pro forma basis as of September 30, 2002, after giving effect to the consummation of the transaction contemplated hereby.
(g) The Lenders shall have received a certificate as of a recent date of the good standing or existence of PXRE Bermuda under the law of its state or country of organization.
(h) All approvals, permits and consents of any Governmental Authorities or other Person required in connection with the execution and delivery of this Third Amendment, the PXRE Credit Enhancement Policy and the consummation of the transactions contemplated hereby shall have been obtained (without the imposition of conditions that are not reasonably acceptable to the Agent and the Required Lenders), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Third Amendment, the PXRE Credit Enhancement Policy or the consummation of the transactions contemplated hereby, or that, in the opinion of the Agent and the Required Lenders, would otherwise be reasonably likely to have a Material Adverse Effect.
(i) The Borrower shall have paid the fee that is due and payable under that certain letter between the Agent and Borrower dated October 2, 2002 (the "Third Amendment Fee Letter"), together with all other fees and expenses of the Agent and the Lenders required hereunder or thereunder or under any other Credit Document to be paid on or prior to the Third Amendment Effective Date (including the reasonable fees and expenses of U.S. and Bermuda counsel to the Agent) in connection with this Third Amendment and the transactions contemplated hereby.
(j) Each of the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Existing Credit Agreement Agreement, this Third Amendment and any the other Loan Document Credit Documents shall be true and correct in all material respects on and as of the date hereof; provided thatThird Amendment Effective Date with the same effect as if made on and as of such date, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, except to the extent that any such representations and warranties specifically refer representation or warranty is expressly stated to an earlier have been made as of a specific date, they in which case such representation or warranty shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(gk) No Default or Event of Default shall existhave occurred and be continuing, or would result from both immediately before and after giving effect to the effectiveness of this Amendment or from the application consummation of the proceeds thereoftransactions contemplated hereby.
(hl) The Administrative Agent (or its counsel) and each Lender shall have received a Note executed by such other documents, certificates, opinions and instruments in connection with the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective DatePXRE Bermuda Credit Enhancement Policy, the Administrative Agent Group Guarantee and this Third Amendment as it shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actreasonably requested.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Pxre Group LTD)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (such date being referred to as above written when, and only when, the “Agent shall have received counterparts of this Amendment No. 3 Effective Date”, which date is August 8, 2014) when each executed by the Borrower and the Required Lenders and the Agent shall have additionally received all of the following conditions shall have been satisfieddocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Required Lenders (unless otherwise specified) and in sufficient copies for each Lender:
(a) The Administrative Agent shall have received Certified copies of the general resolutions of the Board of Directors of the Borrower which authorize the Borrower to enter into this Amendment, duly executed the Credit Agreement as amended hereby and delivered by (A) the Borrowermatters contemplated hereby and thereby and all documents evidencing other necessary corporate action and governmental approvals, (B) Holdingsif any, (C) with respect to this Amendment, the Guarantors, (D) Credit Agreement and the Incremental Term B-2 Lender, (F) the Required Lenders matters contemplated hereby and (G) the Administrative Agentthereby.
(b) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment No. 3 Effective Dateand the other documents to be delivered hereunder and thereunder.
(c) The Administrative Agent shall have receivedA favorable opinion of Vice President, on behalf Legal Services of itselfthe Borrower and of Xxxxxx, the First Lien Collateral Agent and the Lenders, an opinion from Ropes Xxxxxxxxxx & Xxxx Xxxxxxxxx LLP, New York counsel for in substantially the Loan Partiesforms of Exhibit A and Exhibit B, dated respectively, hereto and as to such other matters as any Lender through the Amendment No. 3 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance may reasonably satisfactory to the Administrative Agentrequest.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 3 Effective Date, A certificate signed by a Responsible Officer duly authorized officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).Borrower stating that:
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and to the extent invoiced at least two Business Days prior to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date.
(fi) The representations and warranties of the Borrower and each other Loan Party contained in Article V Section 3 of this Amendment, and in Section 4.01 of the Credit Agreement and any other Loan Document shall be true and Agreement, as amended hereby, are correct in all material respects on and as of the date hereof; provided that, to the extent that of such representations certificate as though made on and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates*** INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(gii) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereofevent has occurred and is continuing that constitutes a Default.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page to this Amendment (the “Consent”) prior to 5:00 PM (New York City time) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately prior to the Amendment No. 3 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The obligations of the Refinancing Term Loan Lenders to make the New Term Loans under the Credit Agreement, and the amendments to the Original Credit Agreement contained in Section 1(a) hereof, shall become effective as of the first date (such date being referred to as the “Third Amendment No. 3 Effective Date”, ) on which date is August 8, 2014) when each of the following conditions shall have been satisfied:satisfied (or waived by the Refinancing Term Loan Lenders):
(a) 1. The Administrative Agent and the Refinancing Term Loan Lenders shall have received counterparts of (i) this Amendment, duly Amendment executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) Administrative Agent and the Incremental Refinancing Term B-2 Lender, (F) the Required Loan Lenders and (Gii) the Administrative Agent.Guarantor Consent and Reaffirmation attached hereto as Exhibit A (the “Guarantor Consent”) executed by Holdings and each Subsidiary Guarantor (collectively, the “Guarantors” and each, a “Guarantor”);
(b) 2. The Administrative Agent on behalf of itself and the Refinancing Term Loan Lenders shall have received a Committed Loan Notice with respect to the Incremental Term B-2 Loans not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 3 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an customary legal opinion from (i) Ropes & Xxxx LLP, New York counsel for to the Loan Parties, dated the Amendment No. 3 Effective Date Parties and addressed (ii) each local counsel to the Administrative Agent, the First Lien Collateral Agent and the Lenders, in form and substance reasonably satisfactory Loan Parties listed on Schedule 4(b) to the Administrative Agent.this Amendment;
(d) 3. The Administrative Agent on behalf of itself and the Refinancing Term Loan Lenders shall have received such (x) received, with respect to each Loan Party, certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan PartyParty (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates and/or or other certificates of Responsible Officers of each Loan Party as certifying true and complete copies of the Administrative Agent may reasonably require Organizational Documents attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) the Guarantor Consent;
4. The Administrative Agent and the Refinancing Term Loan Lenders shall have received a certificate, dated as certificate of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of Borrower certifying that the conditions set forth in Sections 4(fclauses (f) and (g).) of this Section 5 have been satisfied;
(e) Payment of all reasonable fees and expenses due to the 5. The Administrative Agent and the Arrangers Refinancing Term Loan Lenders shall have received a solvency certificate from a Responsible Officer of the Borrower (as agreed to in writing between the Administrative Agent and/or the Arrangers and the Borrower), in each case required to be paid on the Amendment No. 3 Effective Date and after giving effect to the extent invoiced at least two Business Days prior transactions contemplated by this Amendment) based on and consistent with the form attached to the Amendment No. 3 Effective Date. Substantially simultaneous with effectiveness, the Lenders holding Term B-2 Loans immediately before the Amendment No. 3 Effective Date under the existing Credit Agreement shall have been paid all accrued and unpaid interest on their Term B-2 Loans to, but not including, the Amendment Noas Exhibit K;
6. 3 Effective Date.
(f) The representations and warranties of the Borrower and each other Loan Party contained in Article V III of the Credit Agreement and any other Loan Document Section 5 of this Amendment shall be true and correct in all material respects on and as of the date hereofThird Amendment Effective Date; provided that, in the case of any representation and warranty which expressly relates to the extent that a specific date or period, such representations representation and warranties specifically refer to an earlier date, they warranty shall be true and correct in all material respects as of such earlier datethe respective #94508849v9 dates or for the respective period, as the case may be; provided, further, that, if any representation and warranty that is qualified as by or subject to a “Material Adverse Effectmaterial adverse effect”, “material adverse change” or similar language term or qualification, such representation and warranty shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.;
(g) 7. No Default under Section 7.01(a), 7.01(f) or 7.01(g) of the Original Credit Agreement or Event of Default under the Original Credit Agreement shall existexist immediately prior to, or would result from and no Event of Default under the effectiveness of Credit Agreement after, giving effect to this Amendment or from and the application making of the proceeds thereof.New Term Loans;
(h) 8. The Administrative Agent (or its counsel) on behalf of itself and the Refinancing Term Loan Lenders shall have received a Note executed by the Borrower for each Lender that requests such a Note Borrowing Request no later than 2:00 p.m. (New York time) at least two Business Days prior to the Amendment No. 3 Effective Date.
(i) To the extent reasonably requested by the Arrangers in writing not less than five (52) Business Days prior to the requested date of the Borrowing (or any such later date the Administrative Agent may agree) in respect of the New Term Loans;
9. The Borrower shall have paid all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Arrangers (as defined in the engagement letter, dated as May 6, 2021 (the “Engagement Letter”), by and among the Borrower, BofA Securities, Inc. (“BofA Securities”) and Nomura Securities International, Inc. (“Nomura”)) (including, without limitation, the actual reasonable and documented out-of-pocket fees, disbursements and other charges of Xxxxx Xxxx & Xxxxxxxx LLP) in connection with this Amendment No. 3 invoiced at least three (3) Business Days (unless otherwise agreed by the Borrower) prior to the Third Amendment Effective Date;
10. The Borrower shall have paid all fees required to be paid pursuant to (i) the fee letter, dated as of May 6, 2021, by and between the Borrower and BofA Securities and (ii) the fee letter, dated as of May 6, 2021, by and between the Borrower and Nomura;
11. The Administrative Agent shall have received, received (i) at least two (2) Business Days prior to the effectiveness of this Amendment, Third Amendment Effective Date all documentation and other information with respect to about the Loan Parties Borrower and the Guarantors required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, regulations (including without limitation the USA PATRIOT Act.
(j) The Administrative Agent shall have received for the account of each Lender (other than GECC, in its capacity as Incremental Term B-2 Lender) that delivered an executed signature page has been reasonably requested in writing at least ten (10) Business Days prior to this the Third Amendment Effective Date and (ii) one (1) Business Day prior to the Third Amendment Effective Date all documentation and other information about the Borrower required by regulatory authorities under 31 C.F.R. § 1010.230 (the “ConsentBeneficial Ownership Regulation”) prior to 5:00 PM that has been reasonably requested in writing at least ten (New York City time10) on August 5, 2014, consent fees in an amount equal to 0.25% of such Lender’s principal amount of Term B-2 Loans, Revolving Credit Loans and/or Revolving Credit Commitments, as applicable, outstanding immediately Business Days prior to the Third Amendment NoEffective Date; and
12. 3 The Refinancing shall be consummated (and payment of the Term Loan Repayment Amount by the Borrower to the Administrative Agent for the accounts of the existing Lenders shall occur) substantially simultaneously with the Borrowing of such Replacement Term Loans from the proceeds thereof. #94508849v9 For purposes of determining compliance with the conditions specified in this Section 5, the Refinancing Term Loan Lenders shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Refinancing Term Loan Lenders from and after the making by the Refinancing Term Loan Lenders of the New Term Loans pursuant to Section 2.01(b) of the Credit Agreement. The Refinancing Term Loan Lenders and the Borrower shall promptly notify the Administrative Agent of the occurrence of the Third Amendment Effective Date.
Appears in 1 contract
Samples: First Lien Credit Agreement (Hayward Holdings, Inc.)
