Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent: (1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)). (2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date). (3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment. (4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents. (5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent. (6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date. (7) No Term Loans shall be outstanding. (b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects. (c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Exponential Interactive, Inc.), Credit Agreement (Exponential Interactive, Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (Ai) from counterparts of this Amendment executed by the Borrower and the each Lender a duly executed original (or, if elected by as to any of the Lenders, advice satisfactory to the Administrative AgentAgent that such Lender has executed this Amendment, an executed facsimile copy(ii) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note consent attached hereto (the “New NoteConsent”) substantially in executed by each of the form of Exhibit B-2 Guarantors, and (iii) a Note payable to the Credit Agreement (but dated order of each Lender requesting the Effective Date and also stating that it replaces and supersedes, without novation, the same in a principal amount equal to such Lender’s respective Revolving Credit Notes previously delivered Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Borrower under the Credit Agreement (the “Old Notes”)Amendment Effective Date, in which case as of such specific date).
(2c) The No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges fees and disbursements expenses of counsel for the Administrative Agent, to ) due and payable on the extent invoiced on or prior to the Amendment Effective Date)Date shall have been paid in full.
(3e) The Administrative Agent shall have received from Certified copies of (i) the Borrowerresolutions of the Board of Directors, in form general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and substance satisfactory to itthe matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, a Compliance Certificate as of September 30if any, 2009 calculated on a pro forma basis after giving effect with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(4f) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy A certificate of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing (i) the execution, delivery Borrower certifying the names and performance true signatures of the officers of the Borrower authorized to sign this Amendment Documents.
and (5ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 effectiveness of this Amendment shall be true and correct on and as is conditioned upon the accuracy of the Effective Date with factual matters described herein. This Amendment is subject to the same effect as if made on and as provisions of Section 9.01 of the Effective DateCredit Agreement.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Digital Realty Trust, Inc.), Credit Agreement (Digital Realty Trust, Inc.)
Conditions of Effectiveness. (a) The effectiveness of the amendment and restatement of the Existing Credit Agreement pursuant to Section 2 1 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1a) The Administrative Agent (or its counsel) shall have received (i) from each of the Borrowers, the Required Lenders under the Existing Credit Agreement and the U.S. Term Lenders either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent (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 and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of K&L Gates LLP, U.S. counsel to the Loan Parties, K&L Gates LLP, U.K. counsel to the Loan Parties, and Xxxxxx X. Xxxxxx, internal counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent 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 Company hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received (Ai) from the Borrower all fees and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses other amounts due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the 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 Borrowers under the Loan Documents and (3ii) all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement. If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon. The Administrative Agent shall have received from notify the Borrower, in form Borrowers and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy Lenders of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Restatement Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement and such notice shall remain unchanged be conclusive and in full force and effect and is hereby ratified and confirmed in all respectsbinding.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Conditions of Effectiveness. (a) 3.1 The effectiveness agreement of Section the Parties referred to in clause 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedentbeing satisfied to the reasonable satisfaction of the Facility Agent:
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Facility Agent shall have received from the New Borrower, in form :
(i) a certificate of its Secretary or Assistant Secretary as to the incumbency and substance satisfactory signatures of those of its officers authorised to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect act with respect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form Amendment and substance satisfactory as to the Administrative Agent, a copy truth and completeness of the attached resolutions passed by the board of directors its Board of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing Directors then in full force and effect authorising the execution, delivery and performance of this Amendment, and upon which certificate the Amendment Documents.
(5) The Administrative Lenders may conclusively rely until the Facility Agent shall have received all other documents it a further certificate of the Secretary or Assistant Secretary of the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.New Borrower cancelling or amending such prior certificate; and
(6ii) The representations and warranties a Certificate of Good Standing issued by the relevant Liberian authorities in Section 3 of this Amendment shall be true and correct on and as respect of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.New Borrower;
(b) From 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 Facility Agent pursuant to the 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 and after the Effective Date, the Credit Agreement is amended 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 set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and being in full force and effect and is hereby ratified and confirmed in all respects.not revoked or withdrawn);
(c) the Facility Agent shall have received a duly executed copy of each Fee Letter;
(d) the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the New Borrower pursuant to clause 6 below, and all other documented fees and expenses that the New Borrower has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;
(e) the ECA Agent and the Facility Agent shall have received evidence satisfactory to the ECA Agent and the Facility Agent (acting on the instructions of the Lenders) that BpiFAE has approved the arrangements referred to in this Amendment;
(f) 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 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 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 this Amendment;
(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 set out in this Amendment.
3.2 The Administrative Facility Agent will shall notify the Lenders, the Existing Borrower and the New Borrower of the occurrence Amendment Effective Date by way of a confirmation in the Effective Dateform set out in Schedule 2 and such confirmation shall be conclusive and binding.
Appears in 2 contracts
Samples: Amendment Agreement (Royal Caribbean Cruises LTD), Amendment Agreement (Royal Caribbean Cruises LTD)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Agreement.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement or the Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such to the execution and delivery hereof by the Borrower.
(3) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 3 of this Amendment Agreement and any costs and expenses payable under Section 6(g) of this Amendment Agreement (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(65) The representations and warranties in Section 3 4 of this Amendment Agreement shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 5(a), each Lender that has signed this Agreement shall be outstandingdeemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant heretocontemplated hereby, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 2 contracts
Samples: Waiver Agreement (Solectron Corp), Waiver Agreement (Solectron Corp)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions:
(a) The effectiveness of Section 2 Administrative Agent’s receipt of this Amendment shall be subject to the satisfaction of each Agreement, properly executed by a Responsible Officer of the following conditions precedent:Borrower, dated the Effective Date.
(1b) The Administrative Agent shall have received (A) from Notes executed by the Borrower in favor of each Lender requesting Notes.
(c) The Arrangers shall have received at least three Business Days prior to the Effective Date all documentation and the Lender a duly executed original (or, if elected information as is reasonably requested in writing by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 at least 10 Business Days prior to the Credit Agreement (but dated Effective Date, about the Borrower required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act. If the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, the Borrower shall have delivered to each requesting Lender at least three Business Days prior to the Effective Date and also stating that it replaces and supersedes, without novation, (to the Revolving Credit Notes previously delivered extent requested by such Lender at least 10 Business Days prior to the Borrower under Effective Date) a Beneficial Ownership Certification in relation to the Credit Agreement (the “Old Notes”))Borrower.
(2d) All fees and reimbursement of expenses invoiced no later than two Business Days prior to the Effective Date related to the Transactions payable to the Arrangers, the Administrative Agent or the Lenders shall have been paid to the extent due.
(e) The Administrative Agent shall have received evidence the following, each properly executed by a Responsible Officer of payment by the Borrower of all feesBorrower, costs and expenses due and payable as of each dated the Effective Date under (or, in the case of certificates of governmental officials, a recent date before the Effective Date):
(i) such certificates or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower 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 Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment other Loan Documents to which the Borrower is a party; and
(ii) such documents and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for certifications as the Administrative AgentAgent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received notice from such Lender prior to the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) proposed Effective Date specifying its objection thereto. The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify give the Borrower and the Lenders notice of the occurrence of the Effective Date. The giving of such notice by the Administrative Agent shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each Lender that each of the conditions precedent set forth in this Section 4.01 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person.
Appears in 2 contracts
Samples: Credit Agreement (Warner Bros. Discovery, Inc.), Credit Agreement (At&t Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment This Amendatory Agreement shall be subject to the satisfaction of each operative as of the following conditions precedent:
(1) The Administrative date hereof but shall become effective when, and only when, the Agent shall have received (Ax) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) counterparts of this Amendment and (B) from Amendatory Agreement executed by the Borrower, a duly executed original (or an executed facsimile copy with an original the Guarantors and the Lenders or, as to follow promptly thereafter) any of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 said Lenders, advice satisfactory to the Credit Agent that such Lender has executed this Amendatory Agreement and (but y) all of the following documents, each document (unless otherwise indicated) being dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowereffective date, in form and substance satisfactory to the Administrative Agent, :
(a) a copy certificate of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery Borrower and performance the Guarantor certifying the names and true signatures of their respective officers authorized to sign this Amendatory Agreement and the other documents to be delivered hereunder;
(b) a certificate signed by a duly authorized officer of the Amendment Documents.Borrower stating that:
(5i) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties of the Borrower as set forth in Section 3 Article IV of this Amendment shall be the Credit Agreement and in any documents delivered therewith, including the Loan Documents, are true and correct on and as of the Effective Date with the same effect date of such certificate as if though made on and as of such date (except insofar as such representations and warranties relate expressly to an earlier date or are based on the Effective Date.accuracy of schedules prepared as of a prior date),
(7ii) No Term Loans shall be outstanding.the representations and warranties contained in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(biii) From and after the Effective Dategiving effect to this Amendatory Agreement, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect no Default or Event of Default has occurred and is hereby ratified and confirmed in all respectscontinuing.
(c) The Administrative Agent will notify certified copies of (i) the resolutions of the Board of Directors of the Borrower and of the occurrence Guarantor approving this Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendatory Agreement and the matters contemplated hereby; and
(d) a favorable opinion of Xxxxxxx & Xxxxxxx, counsel for the Effective DateBorrower and the Guarantor, in a form reasonably acceptable to the Agent and Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Farm Fresh Inc), Revolving Credit Agreement (Ff Holdings Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment This Waiver and Amendatory Agreement shall be subject to the satisfaction of each operative as of the following conditions precedent:
(1) The Administrative date hereof but shall become effective when, and only when, the Agent shall have received (Ax) from counterparts of this Waiver and Amendatory Agreement executed by the Borrower and the Lender a duly executed original (Lenders or, if elected by as to any of said Lenders, advice satisfactory to the Administrative Agent, an Agent that such Lender has executed facsimile copy) of this Amendment Waiver and Amendatory Agreement and (By) from all of the Borrowerfollowing documents, a duly executed original each document (or an executed facsimile copy with an original to follow promptly thereafterunless otherwise indicated) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but being dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowereffective date, in form and substance satisfactory to the Administrative Agent, :
(a) a copy certificate of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Personthe Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this Waiver and Amendatory Agreement, authorizing and the execution, delivery and performance other documents to be delivered hereunder;
(b) a certificate signed by a duly authorized officer of the Amendment Documents.Borrower stating that:
(5i) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties of the Borrower as set forth in Section 3 Article IV of this Amendment shall be the Credit Agreement and in any documents delivered therewith, including the Loan Documents, are true and correct on and as of the Effective Date with the same effect date of such certificate as if though made on and as of such date (except insofar as such representations and warranties relate expressly to an earlier date or are based on the Effective Date.accuracy of schedules prepared as of a prior date),
(7ii) No Term Loans shall be outstanding.the representations and warranties contained in Section 4 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(biii) From after giving effect to this Waiver and after the Effective DateAmendatory Agreement, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect no Default or Event of Default has occurred and is hereby ratified and confirmed in all respectscontinuing.
(c) The Administrative Agent will notify certified copies of (i) the resolutions of the Board of Directors of the Borrower and of the occurrence Guarantor approving this Waiver and Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Waiver and Amendatory Agreement and the matters contemplated hereby; and
(d) a favorable opinion of Xxxxxxx & Xxxxxxx, counsel for the Effective DateBorrower and the Guarantor, in a form reasonably acceptable to the Agent and Lenders.
Appears in 2 contracts
Samples: Waiver and Eleventh Amendatory Agreement (Ff Holdings Corp), Waiver and Eleventh Amendatory Agreement (Farm Fresh Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent, in form and substance satisfactory to the Administrative Agent, of each Guarantor in its capacity as such to the execution and delivery hereof by the Company.
(3) The Administrative Agent shall have received evidence of payment by the Borrower Company of all fees, reasonable costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the BorrowerCompany, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the BorrowerCompany, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documentsthis Amendment.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has executed this Amendment shall be outstandingdeemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Sanmina-Sci Corp), Credit Agreement (Sanmina-Sci Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be (the “Amendment No. 1 Effective Date”) is subject to the satisfaction of each of the following conditions precedent:
(1a) The Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrowers, each Lender, the Issuing Bank, the Swingline Lender and the Administrative Agent.
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 1 Effective Date) of (i) Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Borrowers, (ii) Xxxxxxx X. Xxxx, general counsel for the Borrowers and (iii) Xxxxxxxxxx XXX, Xxxxxxxxxx counsel for the Foreign Subsidiary Borrower, in each case covering such other matters relating to the Borrowers, this Amendment or the Amended Credit Agreement as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsels to deliver such opinions.
(c) The Administrative Agent shall have received (Ai) from a certificate signed by a Financial Officer of the Borrower Company certifying that, after giving effect to this Amendment, the Company is in compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement and (ii) documents consistent with those delivered on the Effective Date of the Credit Agreement as to the corporate power and authority of the Borrowers to execute and deliver this Amendment and to borrow under and perform its obligations under the Amended Credit Agreement.
(d) The Administrative Agent shall have received, for the account of each Lender a duly party hereto that delivers its executed original (or, if elected signature page to this Amendment by no later than the date and time specified by the Administrative Agent, an executed facsimile copyupfront fee in an amount equal to the amount previously disclosed to the Lenders.
(e) the Administrative Agent shall have made such reallocations, if any, of this Amendment and (B) from each Lender’s Applicable Percentage of the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement total Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower Exposures under the Credit Agreement (as are necessary in order that the “Old Notes”Revolving Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the total Revolving Credit Exposures under the Amended Credit Agreement. 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 the reallocation described in this Section 4(e)), in each case on the terms and in the manner set forth in Section 2.16 of the Credit Agreement.
(2f) The Administrative Agent shall have received evidence payment of payment by the Borrower of all fees, costs Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to connection with this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Masco Corp /De/), Credit Agreement (Masco Corp /De/)
Conditions of Effectiveness. (a) 3.1 The effectiveness limited consent set forth in Article I shall become effective as of Section 2 the date when, and only when, the Agent shall have received an executed counterpart of this Consent and Amendment from the Lenders constituting the Majority Banks under the Facility Agreement and from the Borrower and the Guarantor.
3.2 The amendments set forth in Article II hereof shall be subject to become effective as of the satisfaction of date (the “Amendment Effective Date”) when, and only when, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (A) an executed counterpart of this Consent and Amendment from the Lenders constituting the Majority Banks under the Facility Agreement and from the Borrower and the Lender a duly executed original Guarantor;
(orb) 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, if elected amendments, consents or waivers of the terms of the Merger Agreement that are material and adverse to the Lenders or the Agent as reasonably determined by the Administrative Agent, an executed facsimile copy) without the prior consent of this Amendment and the Majority Banks (B) from the Borrowersuch consent not to be unreasonably withheld, a duly executed original (delayed or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”conditioned)).;
(2c) The Administrative Agent shall have received evidence of payment by an executed Guaranty from RenRe Holdings in substantially the Borrower of all fees, costs and expenses due and payable form attached hereto as of Exhibit A (the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date“RenRe Holdings Guaranty”).;
(3d) The Administrative Agent shall have received from a certificate, signed by an officer of the BorrowerGuarantor, in form and substance reasonably satisfactory to itthe Agent, a Compliance Certificate certifying that (i) all representations and warranties of the Borrower and the Guarantor contained in the Facility Agreement and the other Finance Documents (including the representations and warranties set forth in Article IV hereof) are true and correct as of September 30the Amendment Effective Date, 2009 calculated on a pro forma basis immediately after giving effect to this Amendment.
Consent and Amendment (4) The Administrative Agent shall except to the extent any such representation or warranty is expressly stated to have received from the Borrowerbeen made as of a specific date, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary which case such representation or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment warranty shall be true and correct on as of such date), and (ii) no Default or Event of Default has occurred and is continuing as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Amendment Effective Date, immediately after giving effect to this Consent and Amendment;
(e) All material governmental authorizations and approvals necessary in connection with the Credit Agreement is amended as 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 Agent or the Lenders; and no law or regulation shall be applicable that seeks to enjoin, restrain, restrict, set forth herein. Except as expressly amended pursuant heretoaside or prohibit, or impose materially adverse conditions upon, the Credit Agreement consummation of the Merger; and all third-party consents necessary in connection with the consummation of the Merger shall have been obtained and remain unchanged and in full force and effect and is hereby ratified and confirmed (except for any third-party consents that are not material or with respect to which the failure to obtain such consents would not result in all respects.a Material Adverse Effect); and
(cf) The Administrative Agent will notify Borrower and the Borrower Guarantor shall have paid all reasonable out-of-pocket costs and expenses of the occurrence Lenders in connection with the preparation, negotiation, execution and delivery of this Consent and Amendment (including, without limitation, the Effective Datereasonable fees and out-of-pocket expenses of counsel for the Agent with respect thereto).
Appears in 2 contracts
Samples: Facility Agreement, Facility Agreement (Renaissancere Holdings LTD)
Conditions of Effectiveness. (a) The effectiveness of Section 2 this Waiver and Amendment is expressly conditioned upon the occurrence and completion of this Amendment shall be subject to the satisfaction of each all of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) following: The representations and warranties of the Loan Parties contained in Section 3 6 of this Amendment the Credit Agreement and in the other Loan Documents shall be true and correct on the date hereof with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Datespecific dates or times referred to therein), the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant heretoLoan Parties shall have performed and complied with all covenants and conditions thereof, and no Event of Default or Potential Default under the Credit Agreement shall remain unchanged have occurred and in full force be continuing or shall exist, except as expressly waived by this Waiver and effect Amendment. By execution and is hereby ratified delivery to the Agent of this Waiver and confirmed in Amendment, the Loan Parties shall be deemed to have certified the accuracy of all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence matters in this Section F.1; Receipt by the Agent on behalf of the Effective Date.Banks of all fees, costs expenses and disbursements due and payable to the Agent and any Bank as of the date hereof and for all fees, costs, expenses and disbursements in connection with this Waiver and Amendment, including, without limitation, the fees and expenses set forth in Section E of this Waiver and Amendment; and All legal details and proceedings in connection with the transactions contemplated by this Waiver and Amendment shall be in form an substance satisfactory to the Agent. The Agent shall have received counterparts of this Waiver and Amendment duly executed by the Loan Parties, the Agent, and the Required Banks. There shall be delivered to the Agent for the benefit of each Bank a certificate dated the effective date hereof and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to:
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 and Section 3 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement or the Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Borrower.
(3) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date date hereof hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 6 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Datedate hereof).
. Fifth Amendment and Waiver (3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.-Year)
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy copies of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date date hereof by the Secretary or an Assistant Secretary of such Personthe Borrower, authorizing the execution, delivery and performance of this Amendment, together with such incumbency certificates and/or other certificates of Responsible Officers of the Borrower, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as such in connection with this Amendment Documentsand each other Loan Document to which the Borrower is a party.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties Effective Date shall have occurred on or before August 31, 2003.
(b) For purposes of determining compliance with the conditions specified in Section 3 of 5(a), each Lender that has executed this Amendment shall be true and correct on and as of deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Effective Date with the same effect as if made on and as of the Effective DateAdministrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(7) No Term Loans shall be outstanding.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. (a) The effectiveness of the amendment and restatement of the Existing Agreements pursuant to Section 2 1 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original GE Capital (or an executed facsimile copy with an original to follow promptly thereafterits counsel) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the BorrowerCompany, the Lenders, GE Capital, the Sellers and the Parent either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to GE Capital (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 Lenders and GE Capital shall have received such documents, instruments, agreements and legal opinions as each Lender and GE Capital shall request in connection with the transactions contemplated by this Agreement, each in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendmenteach Lender and GE Capital.
(4c) The Administrative Agent Lenders and GE Capital shall have received from satisfactory evidence that the BorrowerCompany, in form the Servicer and substance satisfactory the Sellers have obtained all required consents and approvals of all Persons, including all Governmental Authorities, to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of this Agreement and the Amendment Documentsother Transaction Documents and the consummation of the transactions contemplated hereby or thereby.
(5d) The Administrative Agent Company, the Sellers and the Servicer shall have received be in compliance with all other documents it or applicable foreign, federal, state and local laws and regulations, including, without limitation, those specifically referenced in Section 5.01(a) of the Lender may reasonably request relating to any matters relevant heretoRestated Credit Agreement, all in form and substance satisfactory except to the Administrative Agentextent noncompliance could not reasonably be expected to have a Material Adverse Effect.
(6e) The representations Company and warranties in Section 3 of this Amendment the Parent, as applicable, shall have paid all fees required to be true and correct paid by such Person on and as of the Effective Date with the same effect as if made on and as of the Restatement Effective Date, including all fees required hereunder, under the Fee Letter and any other letter agreements executed in connection herewith, and the Company shall have reimbursed GE Capital for all reasonable fees, costs and expenses of closing the transactions contemplated hereunder and under the other Transaction Documents, including GE Capital’s legal and audit expenses, and other document preparation costs.
(7f) No Term Loans The Company shall be outstanding.
have paid (bx) From to each Lender, all interest accrued on all outstanding “Advances” under (and after as defined in) the Effective Date, the Existing Credit Agreement is amended held by such Lender and all “Fees” payable to such Lender under (and as set forth herein. Except as expressly amended pursuant hereto, defined in) the Existing Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in (y) to each applicable Lender, if any, all respects.
(camounts required to be paid to such Lender under Section 2.01(a)(i) The Administrative Agent will notify the Borrower of the occurrence of the Effective DateRestated Credit Agreement.
Appears in 1 contract
Samples: Credit and Security Agreement (Sungard Data Systems Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Amendment, and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 D to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))this Amendment.
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 6 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Secretary’s Certificate dated as of September 30the Effective Date, 2009 calculated executed by the Secretary of the Borrower and certifying (A) the incumbency, offices and signature specimens of each signatory authorized to execute and deliver Amendment Documents on behalf of the Borrower, (B) the attachment thereto of a pro forma basis after giving true and accurate copy of the Certificate of Incorporation of the Borrower, together with all amendments thereto and as in effect to this Amendmenton the Effective Date, or, in the alternative, certifying that the Certificate of Incorporation of the Borrower has not been amended or otherwise modified since November 10, 2009, (C) the attachment thereto of a true and correct copy of the Bylaws of the Borrower, as in effect on the Effective Date, or, in the alternative, certifying that the Bylaws of the Borrower have not been amended or otherwise modified since November 10, 2009, and (D) the attachment thereto of a true and accurate copy of the resolutions adopted by the Borrower for the purpose of authorizing the execution, delivery and performance by the Borrower of the Amendment Documents.
(4) The Administrative Agent shall have received from an opinion of legal counsel to the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of addressing such matters related to the resolutions passed by Borrower and the board of directors of Amendment Documents as the Borrower, certified as of Administrative Agent shall specify (with the Effective Date by understanding that no opinions with respect to the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance enforceability of the Amendment DocumentsDocuments or the creation or perfection of any Liens or security interests of the Administrative Agent shall be required).
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of date (the “Amendment Effective Date”) when, and only when, each of the following conditions precedentprecedent shall have been satisfied or waived:
(1a) The Administrative Agent shall have received counterparts of this Amendment executed by (Ai) from each of the Company, Kodak Canada and each Guarantor and (ii) the Required Lenders, or as to any such Lender, advice satisfactory to the Agent that such Lender has executed this Amendment.
(b) The Agent shall have received a certificate of each Borrower signed on behalf of such Borrower by a Responsible Officer, dated the date of the Amendment Effective Date, certifying as to (i) the correctness of the representations and warranties contained in the Lender a duly executed original (orLoan Documents as though made on and as of the date of the Amendment Effective Date, if elected by the Administrative Agent, an executed facsimile copy) of before and after giving effect to this Amendment and (Bii) the absence of any event occurring and continuing, or resulting from the BorrowerAmendment Effective Date, that constitutes a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Default.
(2c) The Administrative Agent shall have received evidence of payment by such documents and certificates as the Borrower of all fees, costs and expenses due and payable as Agent or its counsel may reasonably request relating to the authorization of the Effective Date transactions under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs other legal matters relating to the Loan Parties, this Amendment or the transactions contemplated hereunder, all in form and substance reasonably satisfactory to the Agent and its counsel.
(d) Immediately before and after giving effect to this Amendment, no Default shall have occurred and be continuing.
(e) The Company shall have paid (i) to the Agent, for the benefit of each Lender under Revolving Credit Facility-B executing this Amendment prior to or concurrently with the effectiveness thereof, the amendment fee described in the Fee Letter dated February 3, 2010, between the Company and the Agent (the “Fee Letter”) and (ii) all invoiced accrued fees and expenses payable under Section 6(g) of the Agent and Citigroup Global Markets Inc., as sole lead arranger in respect of this Amendment Amendment, (including the reasonable feesfees and expenses of Shearman & Sterling LLP, charges and disbursements of counsel for the Administrative AgentAgent and the sole lead arranger in respect of this Amendment, for which invoices shall have been provided to the extent invoiced on or Company at least two Business Days prior to the Amendment Effective Date).
(3f) The Administrative Agent Borrowers shall have received from permanently reduced Commitments under the BorrowerRevolving Credit Facility-A, for the benefit of each Lender under Revolving Credit Facility-A executing this Amendment prior to or concurrently with the effectiveness thereof (other than any such Lender electing in writing to the Agent at or prior to such time to not receive such Commitment reduction), in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to the aggregate principal amount set forth in the Fee Letter. By executing this Amendment.
, the Required Lenders hereby (4i) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory consent to the Administrative Agentpayment of amendment fees in accordance with Section 2(e) hereof and the reduction in Commitments under the Revolving Credit Facility-A in accordance with Section 2(f) hereof, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5ii) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, agree that the Credit Agreement is deemed to be amended as to make any modifications to the applicable payment, pro rata and sharing provisions of the Credit Agreement needed to permit the payment by the Company of amendment fees in accordance with Section 2(e) hereof and to permit the Company to reduce Commitments under the Revolving Credit Facility-A in accordance with Section 2(f) hereof, (iii) waive any notice and dollar amount requirements under Sections 2.05(a) or 2.10(a) of the Credit Agreement in connection with the reduction in Commitments under the Revolving Credit Facility-A pursuant to Section 2(f) hereof and (iv) consent to the other amendments to the Credit Agreement set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Conditions of Effectiveness. This Amendment shall become effective as of the date first above written (the “Amendment No. 1 Effective Date”) when, and only when, the following conditions have been satisfied:
(a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) counterparts of this Amendment executed by each Loan Party and (B) from the BorrowerRequired Lenders or, a duly executed original (or an executed facsimile copy with an original as to follow promptly thereafter) any of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 Lenders, advice satisfactory to the Credit Agreement (but dated the Effective Date and also stating Agent that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).such Lender has executed this Amendment,
(2b) The the Administrative Agent shall have received evidence a certificate signed by a duly authorized officer of payment by the Borrower of all fees, costs and expenses due and payable stating that: (i) as of the Amendment No. 1 Effective Date under or Date, the representations and warranties contained in connection with this Amendment and Article IV of the Credit Agreement, including any fees arising under or referenced are correct in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable feesall material respects, charges and disbursements of counsel for the Administrative Agent, only to the extent invoiced that such representation and warranty is not otherwise qualified by materiality or Material Adverse Effect on and as of such date, other than any such representations or prior warranties that, by their terms, refer to a specific date other than the Effective Date).date hereof, in which case, as of such specific date; and (ii) no event has occurred and is continuing that constitutes a Default,
(3c) The the Administrative Agent shall have received from a favorable opinion of Xxxxx Day, counsel to the Borrower, as to the enforceability of the Credit Agreement as amended (and such other matters as the Administrative Agent may reasonably request in form connection herewith),
(d) all fees and substance satisfactory expenses of the Administrative Agent (including all reasonable fees and expenses of counsel to itthe Administrative Agent), shall have been paid,
(e) each Lender that executes a Compliance Certificate as counterpart to this Amendment on or before the Amendment No. 1 Effective Date at 5:00 p.m. eastern shall have been paid an amendment fee in an amount equal to 1.50% in respect of September 30, 2009 calculated on a pro forma basis such Lender’s Term Commitment (after giving effect to this Amendment.the Amendment No. 1 Prepayment), which fee shall be due and payable on the Amendment No. 1 Effective Date, and
(4f) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary on or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of before the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the No. 1 Effective Date, the Credit Agreement is amended as set forth hereinBorrower shall have made the Amendment No. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects1 Prepayment.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Term Facility Credit and Guaranty Agreement (Dana Holding Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective on the satisfaction of date that each of the following conditions precedent:is met or waived (the “Amendment Effective Date”):
(1a) The Administrative Agent shall have received counterparts of this Amendment executed by (Ai) from Holdings, (ii) the Borrowers, (iii) solely with respect to the consent set forth in Section 2, the Required Term A Lenders and (iv) with respect to each provision of this Amendment other than Section 2, each Revolving Lender and each Term A Lender (the Lenders described in clauses (iii) and (iv), collectively, the “Third Amendment Lenders”).
(b) As of the Amendment Effective Date, immediately before and after giving effect to this Amendment, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the Amendment Effective Date with the same effect as though made on and as of the Amendment Effective Date; 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 “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on and as of the Amendment Effective Date or on such earlier date, as the case may be.
(c) As of the Amendment Effective Date, immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(d) The Third Amendment Lenders shall have received a certificate of a Responsible Officer of Holdings and each of the Borrower Parties dated the Amendment Effective Date, certifying compliance with clauses (b) and (c) above.
(e) The Administrative Agent shall have received, in immediately available funds, payment or reimbursement of all reasonable and documented or invoiced out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document to the extent invoiced at least two Business Days prior to the Amendment Effective Date.
(f) The Administrative Agent and the Lender a duly executed original Third Amendment Lenders shall have received written opinions (or, if elected by addressed to the Administrative Agent, an executed facsimile copythe Collateral Agent and the Third Amendment Lenders and dated the Amendment Effective Date) of this Amendment (i) Xxxxxx & Xxxxxxx LLP, special New York counsel for the Loan Parties, (ii) Xxxxxx and Calder, Cayman Islands counsel for the Loan Parties and (Biii) from Loyens & Loeff, Luxembourg counsel for the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Loan Parties.
(2g) The Administrative Agent shall have received evidence a copy of payment by the (i) each Organizational Document of each Borrower of all fees, costs Party and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative AgentHoldings certified, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrowerapplicable, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect recent date by the applicable Governmental Authority; provided that such documents shall not be required to this Amendment.
(4) The Administrative Agent shall have received from be delivered if the Borrower, in form Borrower Parties and substance satisfactory Holdings provide certifications that the applicable Organization Documents delivered to the Administrative AgentAgent in connection with the Original Credit Agreement remain in full force and effect and have not been amended, a copy modified, revoked or rescinded since the date of delivery, (ii) signature and incumbency certificates of the Responsible Officers of each Borrower Party and Holdings executing the Loan Documents to which it is a party; provided that such incumbency certificates shall not be required to be delivered if the Borrower Parties and Holdings provide certifications that the applicable incumbency certificates delivered to the Administrative Agent in connection with the Original Credit Agreement remain true and correct since the date of delivery, (iii) resolutions passed by the board of directors of the Borrower, certified as Board of the Effective Date by the Secretary or an Assistant Secretary Directors and/or similar governing bodies of such Person, each Borrower Party and Holdings approving and authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant heretothis Amendment, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and certified as of the Amendment Effective Date with the same effect by its secretary, an assistant secretary or a Responsible Officer as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and being in full force and effect without modification or amendment and (iv) a good standing certificate (to the extent such concept exists and delivery is hereby ratified customary in the applicable jurisdiction) from the applicable Governmental Authority of each Borrower Party and confirmed in all respectsHoldings’ jurisdiction of incorporation, organization or formation.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Third Amendment (Broadcom LTD)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of each become effective as of the following conditions precedent:
(1) The Administrative date set forth above when, and only when, the Agent shall have received (Ain sufficient copies for each Bank) from the Borrower and the Lender a duly executed original following:
(or, if elected by the Administrative Agent, an executed facsimile copya) Counterparts of this Amendment and (B) from executed by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date Guarantor and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstandingBanks.
(b) From Certified copies of the resolutions of the Board of Directors of the Borrower authorizing this Amendment and after of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Effective Date, Secretary or Assistant Secretary of the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsBorrower.
(c) The Administrative Agent will notify the Borrower Certified copies of the occurrence resolutions of the Effective Board of Directors of the Guarantor authorizing this Amendment and of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Secretary or Assistant Secretary of the Guarantor.
(d) A favorable opinion of counsel to the Borrower, to the effect set forth in Annex I to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(e) A favorable opinion of the General Counsel of the Guarantor, to the effect set forth in Annex II to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(f) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Existing Agreement.
(g) Evidence that the "Expiration Date" of the Heat Purchase Contract has been extended to August 27, 1998 and that the "Outside Expiration Date" of the Heat Purchase Contract has been extended to September 1, 2001.
(h) Such other instruments, opinions or documents as any Bank through the Agent may reasonably request.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective on and as of the satisfaction of each date (such date, the “Amendment No. 1 Effective Date”) upon which all of the following conditions precedentset forth in this Section 5 shall have been satisfied:
(1a) The Substantially concurrent with or prior to the effectiveness of this Amendment, the Amendment No. 1 Acquisition will have been consummated in accordance with the terms of the Amendment No. 1 Acquisition Agreement and all conditions precedent to the consummation of the Amendment No. 1 Acquisition, as set forth in the Amendment No. 1 Acquisition Agreement, will have been satisfied without any waiver, amendment, supplement or other modification that is materially adverse to the interests of Administrative Agent or Lenders unless Administrative Agent will have consented thereto, such consent not to be unreasonably withheld or delayed.
(b) Receipt by Administrative Agent of counterparts of this Amendment duly executed by Borrower, Lenders and Administrative Agent.
(c) Administrative Agent shall have received (Ai) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) certificate of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Amendment No. 1 Effective Date and also stating executed by a secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that it replaces attached thereto is a true and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a complete copy of the resolutions passed by the or written consents of its board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Credit Documents to which it is a party and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, directors or authorized signatories of Borrower authorized to sign the Credit Documents to which it is a party on the Amendment DocumentsNo. 1 Effective Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation of Borrower certified as of a recent date by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws and (y) that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (ii) a good standing (or equivalent) certificate as of a recent date for Borrower from its jurisdiction of organization.
(5d) The On the Amendment No. 1 Effective Date after giving effect to this Amendment, (i) the Specified Merger Agreement Representations (as defined below) shall be true and correct to the extent required by the last paragraph of this Section 5 and the Specified Representations (as defined below) shall be true and correct in all material respects (other than any Specified Representations which are qualified by materiality, material adverse effect or similar language, which Specified Representations shall be true and correct in all respects after giving effect to such qualification); provided, that to the extent any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the definition thereof shall be the definition of “BiteSquad Material Adverse Effect” (as defined in the Amendment No. 1 Acquisition Agreement) for purposes of the making or deemed making of such Specified Representation on or as of the Amendment No. 1 Effective Date (or any date prior thereto), (ii) no event shall have occurred and be continuing or would result from the consummation of the Amendment No. 1 Term Loan that would constitute an Event of Default under Sections 8.1(a), (f) or (g) of the Existing Credit Agreement, (iii) since the date of the most recent balance sheet included in the Interim Financial Statements (as defined in the Amendment No. 1 Acquisition Agreement), there shall not have occurred any BiteSquad Material Adverse Effect (as defined in the Amendment No. 1 Acquisition Agreement and (iv) Administrative Agent shall have received all other documents it or a certificate of Borrower, dated the Lender may reasonably request relating to any matters relevant heretoAmendment No. 1 Effective Date and executed by an Authorized Officer thereof, all in form confirming that as of the Amendment No. 1 Effective Date the foregoing clauses (i), (ii) and substance satisfactory to the Administrative Agent(iii) are satisfied.
(6e) The representations and warranties in Section 3 Administrative Agent shall have received a Solvency Certificate from the chief financial officer (or other financial officer with reasonably equivalent responsibilities) of this Amendment shall be true and correct on and Borrower certifying as to the matters set forth therein dated as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinAmendment No. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.1
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (Ai) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) counterparts of this Amendment and (B) from executed by the Borrower, the Administrative Agent and all consenting Lenders (including, at a duly minimum, those Lenders comprising Required Lenders) or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed original this Amendment, and (or an executed facsimile copy with an original to follow promptly thereafterii) of a replacement Revolving Credit Note the consent attached hereto (the “New NoteConsent”) substantially executed by each of the Guarantors.
(b) The representations and warranties set forth in each of the form Loan Documents shall be correct in all material respects on and as of Exhibit B-2 the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Credit Agreement (but dated the Amendment Effective Date and also stating that it replaces and supersedesDate, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)in which case as of such specific date).
(2c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) The Administrative Agent shall have received evidence payment in full of payment by the Borrower of all fees, costs and expenses due and payable as an amendment fee equal to 0.05% of the Effective Date under or in connection with sum of the Commitments of those Lenders that have executed and delivered to the Administrative Agent a signature page to this Amendment and prior to 5:00 p.m. New York time on June 28, 2010, which fee shall be for the ratable benefit of such Lenders. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Digital Realty Trust, L.P.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of not become effective until each of the following conditions precedenthas been satisfied:
(1) The Administrative Agent 3.1 This Amendment shall have received (A) from been executed by the Borrower Loan Parties, the Agent, and the Lender a duly executed original (orBanks.
3.2 The Loan Parties shall have furnished to the Agent such certified copies of the resolutions of the Board of Directors or the members, as the case may be, of the Loan Parties as requested by the Agent approving this Amendment, and of all documents evidencing other necessary corporate or company action, as the case may be, and governmental approvals, if elected by the Administrative Agentany, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect respect to this Amendment.
(4) 3.3 The Administrative Agent Loan Parties shall have received from the Borrower, in form and substance satisfactory furnished to the Administrative Agent such other approvals, opinions, or documents as the Agent may reasonably request.
3.4 The Loan Parties shall have paid all out of pocket fees and disbursements of the Agent, a copy including all unpaid fees and disbursements of the resolutions passed by the board of directors of the Borrower, certified Xxxxxxxxx Xxxxxx PLLC due and owing as of the Effective Date by the Secretary date of this Amendment.
3.5 The Loan Parties shall have executed and delivered, or an Assistant Secretary of caused to be executed and delivered, such Person, authorizing the execution, delivery amendments and performance agreements in respect of the Amendment Documents.
(5) The Administrative Agent Subordination Agreements and any document, instrument or agreement evidencing or executed in connection with any Subordinated Debt as shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory be acceptable to the Administrative Agent.
, which shall provide, without limitation, for (6i) The representations the extension of the maturity date of the Subordinated Debt to a date not earlier than December 31, 2005, (ii) modification of the financial covenants contained in any document, instrument or agreement evidencing or executed in connection with any Subordinated Debt to conform such covenants to the terms and warranties in Section 3 provisions of this Amendment, as applicable, and (iii) the waiver of any defaults arising under such documents, instruments or agreements. Notwithstanding the foregoing, the Agent and the Banks acknowledge and agree that it shall not be a condition precedent to the effectiveness of this Amendment that such items be executed and delivered by Xxxxxx Xxxxxxx as a holder of Subordinated Debt and nor shall it be true and correct on and as a condition precedent to the effectiveness of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, Tenth Amendment to the Credit Agreement is amended dated as set forth herein. Except of August 1, 2005 that any similar items otherwise previously required in connection therewith be executed and delivered by Xxxxxx Xxxxxxx; provided that (y) nothing herein shall be deemed a waiver of any of the rights or remedies of the Agent or the Banks under the Subordination Agreement of Xxxxxx Xxxxxxx, all of which the Agent and the Banks hereby expressly reserve, and (z) this allowance with respect to Xxxxxx Xxxxxxx shall be strictly limited as stated above with respect to Xxxxxx Xxxxxxx in connection with such Tenth Amendment and this Amendment, and nothing herein shall be construed as a waiver of, a consent to or any modification or amendment, or limitation of, any term or condition of this Section 3.5 with respect to any other holder of Subordinated Debt or of any rights or remedies of the Agent or the Banks under any Subordination Agreement of any such other holder, all of which the Agent and the Banks hereby expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsreserve.
(c) 3.6 The Administrative Loan Parties shall have paid an amendment fee to the Agent will notify for the Borrower pro rata benefit of the occurrence Banks in the amount of $5,000, which fee shall be deemed earned upon the Effective Dateexecution of this Amendment.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of date (the “Amendment Effective Date”) when, and only when, each of the following conditions precedentprecedent shall have been satisfied or waived:
(1a) The Administrative Agent shall have received counterparts of this Amendment executed by (Ai) from each of the Company, Kodak Canada and each Guarantor and (ii) the Required Lenders, or as to any such Lender, advice satisfactory to the Agent that such Lender has executed this Amendment.
(b) The Agent shall have received a certificate of each Borrower signed on behalf of such Borrower by a Responsible Officer, dated the date of the Amendment Effective Date, certifying as to (i) the correctness of the representations and warranties contained in the Lender a duly executed original (orLoan Documents as though made on and as of the date of the Amendment Effective Date, if elected by the Administrative Agent, an executed facsimile copy) of before and after giving effect to this Amendment and (Bii) the absence of any event occurring and continuing, or resulting from the BorrowerAmendment Effective Date, that constitutes a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Default.
(2c) The Administrative Agent shall have received evidence of payment by such documents and certificates as the Borrower of all fees, costs and expenses due and payable as Agent or its counsel may reasonably request relating to the authorization of the Effective Date transactions under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs other legal matters relating to the Loan Parties, this Amendment or the transactions contemplated hereunder, all in form and substance reasonably satisfactory to the Agent and its counsel.
(d) Immediately before and after giving effect to this Amendment, no Default shall have occurred and be continuing.
(e) The Company shall have paid (i) to the Agent, for the benefit of each Lender under Revolving Credit Facility-B executing this Amendment prior to or concurrently with the effectiveness thereof, the amendment fee described in the Fee Letter dated September 8, 2009, between the Company and the Agent (the “Fee Letter”) and (ii) all invoiced accrued fees and expenses payable under Section 6(g) of the Agent and Citigroup Global Markets Inc., as sole lead arranger in respect of this Amendment Amendment, (including the reasonable feesfees and expenses of Shearman & Sterling LLP, charges and disbursements of counsel for the Administrative AgentAgent and the sole lead arranger in respect of this Amendment, for which invoices shall have been provided to the extent invoiced on or Company at least two Business Days prior to the Amendment Effective Date).
(3f) The Administrative Agent Borrowers shall have received from permanently reduced Commitments under the BorrowerRevolving Credit Facility-A, for the benefit of each Lender under Revolving Credit Facility-A executing this Amendment prior to or concurrently with the effectiveness thereof, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to the aggregate principal amount set forth in the Fee Letter. By executing this Amendment.
, the Required Lenders hereby (4i) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory consent to the Administrative Agentpayment of amendment fees in accordance with Section 2(e) hereof and the reduction in Commitments under the Revolving Credit Facility-A in accordance with Section 2(f) hereof, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5ii) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, agree that the Credit Agreement is deemed to be amended as to make any modifications to the applicable payment, pro rata and sharing provisions of the Credit Agreement needed to permit the payment by the Company of amendment fees in accordance with Section 2(e) hereof and to permit the Company to reduce Commitments under the Revolving Credit Facility-A in accordance with Section 2(f) hereof, (iii) waive any notice requirements under Sections 2.05(a) or 2.10(a) in connection with the reduction in Commitments under the Revolving Credit Facility-A pursuant to Section 2(f) hereof and (iv) consent to the other amendments to the Credit Agreement set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This First Amendment shall be subject become effective as of the date (such date being referred to as the satisfaction of “First Amendment Effective Date”) when, and only when, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received the following, each dated as of the First Amendment Effective Date (A) from the Borrower unless otherwise specified), and the Lender a duly executed original (or, if elected by in such number of copies as the Administrative Agent, an Agent shall have requested:
(i) Fully executed facsimile copy) counterparts of this First Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date each Lender, and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6ii) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as Copies of the Effective Date with the same effect as if made on and as articles or certificate of incorporation of the Effective DateBorrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdictions of incorporation.
(7iii) No Term Loans Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing (i) the execution of the First Amendment and (ii) borrowings hereunder by the Borrower in an aggregate amount up to $350,000,000.
(iv) An incumbency certificate, executed by the Secretary 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 outstandingentitled to rely until informed of any change in writing by the Borrower.
(v) A certificate, signed by the chief financial officer of the Borrower, stating that the conditions specified in Section 4.2(b) and (c) of the Credit Agreement have been satisfied.
(vi) A written opinion of the Borrower’s counsel, addressed to the Lenders substantially in the form delivered at the initial closing of the Credit Agreement.
(vii) Any Notes requested by a Lender pursuant to Section 2.11 of the Credit Agreement payable to the order of each such requesting Lender.
(viii) Evidence satisfactory to the Administrative Agent of any required Governmental Approvals or consents regarding this First Amendment.
(b) From The Borrower shall have paid (i) to Xxxxx Fargo Securities, the Administrative Agent and after BTMU, for their own respective accounts, on the First Amendment Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant heretofees required to be paid under the First Amendment Fee Letter, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Administrative Fee Letter, (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required to be paid on or prior to the First Amendment Effective Date (including reasonable fees and expenses of counsel to the Administrative Agent) in connection with this First Amendment and (iv) all accrued and unpaid fees and interest due under the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower owing as of the occurrence of the First Amendment Effective Date.
Appears in 1 contract
Samples: Credit Agreement (WGL Holdings Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective upon the satisfaction of first date (the “Effective Date”) on which each of the following conditions precedentto effectiveness have been satisfied:
(1) 4.1 This Amendment shall be signed by the Borrower, the Guarantors, the Agent and the Lenders and delivered to the Agent.
4.2 The Administrative Agent Lenders shall have received (A) from copies of the Revolving Credit Agreement, an amendment and waiver to the Yen Loan Documents and all agreements and documents executed in connection therewith, and all such amendments and waivers and other agreements and documents shall be executed simultaneously herewith and shall be satisfactory to the Required Lenders.
4.3 The Intercreditor Agreement shall be signed by all parties thereto.
4.4 Other than such Collateral Documents permitted to be delivered on a post-closing basis as agreed to by the Agent, Collateral Documents required by the Agent or the Required Lenders shall have been duly executed by the Borrower and each applicable Subsidiary, together with any documents, agreements, instruments, filings and other items related thereto as reasonably required by the Agent or the Required Lenders to create a valid, attached, perfected, first priority Lien in favor of the Collateral Agent with respect to the Collateral covered by the Loan Documents.
4.5 A written opinion of the counsel for the Borrower and the Lender a duly executed original (orGuarantors, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 addressed to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, Lenders in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) 4.6 The representations and warranties in Section 3 of this Amendment Borrower shall be true and correct on and as of have provided all other due diligence materials requested by the Effective Date with Agent or the same effect as if made on and as of the Effective DateRequired Lenders.
(7) No Term Loans 4.7 The Borrower shall have delivered or caused to be outstandingdelivered to the Agent such other documents and instruments as the Agent may request in connection therewith.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Loan Agreement (Kelly Services Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (A) from the Borrower received, in form and the Lender a duly executed original (or, if elected by substance reasonably satisfactory to the Administrative Agent, an executed facsimile copy) counterparts of this Amendment executed by each of the applicable Loan Parties and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))those Lenders comprising Requisite Lenders.
(2b) The Administrative Agent shall have received evidence of payment by the Borrower of all feesreceived, costs in form and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for substance reasonably satisfactory to the Administrative Agent, to (i) the extent invoiced Parent Guaranty executed by the Company and (ii) the Subsidiary Guaranty executed by each Material Subsidiary identified as a Subsidiary Guarantor on or prior to the Effective Date)Schedule 1 attached hereto.
(3c) The Administrative Agent shall have received from the Borrowerreceived, in form and substance reasonably satisfactory to itthe Administrative Agent, a Compliance Certificate as counterparts of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendmenteach of (i) the Pledge Agreement and (ii) the Intercreditor Agreement executed by each of the parties thereto.
(4d) The Administrative Agent shall have received from the Borrowerreceived, in form and substance reasonably satisfactory to the Administrative Agent, a copy of the resolutions passed executed amendment (or amendment to be executed simultaneously with this Amendment) to the Bank of America Loan Agreement modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications that are not materially more favorable to the lenders under the Bank of America Loan Agreement than this Amendment.
(e) The Administrative Agent shall have received a copy of an executed amendment (or amendment to be executed simultaneously with this Amendment) to that certain Senior Secured Term Loan Credit Agreement, dated as of June 8, 2016, by and among the Borrower, the other borrowers party thereto from time to time, the lenders party thereto from time to time and Huntington National Bank, as administrative agent (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Huntington Bank Credit Agreement”).
(f) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of Xxxxxxxx & Xxxxx LLP, counsel for the Borrower and the other Loan Parties and Faegre Drinker Xxxxxx & Xxxxx LLP, special Indiana counsel to the Borrower and the other Loan Parties, in each case, in form and substance reasonably acceptable to the Administrative Agent and covering such customary matters relating to the Loan Parties and this Amendment as the Requisite Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(g) The Administrative Agent shall have received the following items from the Borrower:
(i) Certificates of good standing for each Loan Party from the states of organization of such Loan Party, certified by the board appropriate governmental officer and dated not more than thirty (30) days prior to the Amendment Effective Date;
(ii) Copies of directors the formation documents of each Loan Party certified by an officer of such Loan Party, together with all amendments thereto;
(iii) Incumbency certificates, executed by officers of each Loan Party, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Loan Party (and to make borrowings and request other extensions of credit hereunder on behalf of the Borrower, certified as in the case of the Effective Date Borrower), upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(iv) Copies, certified by a Secretary or an Assistant Secretary of such Personeach Loan Party of the resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for the Administrative Agent) authorizing the transactions contemplated by this Amendment, and the execution, delivery and performance of the Amendment DocumentsLoan Documents to be executed and delivered by the other Loan Parties; and
(v) UCC financing statement, judgment, and tax lien searches with respect to each Loan Party from its state of organization.
(5i) The fees provided for in Section 7 of this Amendment and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable and documented fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date in accordance with the Amended Credit Agreement shall have been paid in full.
(i) The Administrative Agent and each Lender shall have received all documentation and other documents it information about the Loan Parties as shall have been reasonably requested by the Administrative Agent or the such Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory at least three (3) Business Days prior to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with that it shall have reasonably determined is required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation, the same effect as if made on Patriot Act and as of the Beneficial Ownership Regulation to the extent requested by the Administrative Agent or such Lender at least three (3) Business Days prior to the Amendment Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from each Borrower, each of the Borrower Lenders, the Swing Line Lenders, the L/C Issuers and the Lender Agents a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment.
(2) The Administrative Agent shall have received the consent, in form and substance satisfactory to the Administrative Agent, of each Subsidiary party to a Guaranty (in its capacity as such) to the execution and delivery hereof by the Borrowers.
(3) The Administrative Agent shall have received such documents and certifications as it may reasonably require from each Borrower, in form and substance satisfactory to the Administrative Agent, with respect to (A) the due authorization by such Borrower of the execution, delivery and performance of this Amendment and (B) from the Borrowerincumbency, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) authority and signatures of a replacement Revolving Credit Note (the “New Note”) substantially in the form Responsible Officer of Exhibit B-2 to the Credit Agreement (but dated the Effective Date such Borrower executing and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))delivering this Amendment.
(24) The Administrative Agent shall have received evidence of payment by the Borrower Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent’s Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it it, any L/C Issuer or the Lender Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has signed this Amendment shall be outstandingdeemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the each Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement or the Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Borrower.
(3) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date date hereof hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Datedate hereof).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy copies of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date date hereof by the Secretary or an Assistant Secretary of such Personthe Borrower, authorizing the execution, delivery and performance of this Amendment, together with such incumbency certificates and/or other certificates of Responsible Officers of the Borrower, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as such in connection with this Amendment Documentsand each other Loan Document to which the Borrower is a party.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties Effective Date shall have occurred on or before 5:00 p.m. (Pacific time) November 21, 2003.
(b) For purposes of determining compliance with the conditions specified in Section 3 of 4(a), each Lender that has executed this Amendment shall be true and correct on and as of deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Effective Date with the same effect as if made on and as of the Effective DateAdministrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(7) No Term Loans shall be outstanding.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. This Amendment Agreement and the Amended and Restated Credit Agreement shall become effective (such date of effectiveness, the “Amendment Effective Date”) immediately upon the satisfaction of the following conditions:
(a) The effectiveness Receipt by the Administrative Agent of Section 2 executed counterparts of this Amendment shall be subject to Agreement, each properly executed by (i) the satisfaction Administrative Agent, (ii) each L/C Issuer, (iii) a Responsible Officer of each Loan Party, (iv) each Consenting Lender, and (v) each New Lender (if any);
(b) Receipt by the Administrative Agent of executed counterparts of the Loan Party Reaffirmation Agreement attached as Annex B hereto, properly executed by a Responsible Officer of the Company and each other Loan Party.
(c) Satisfaction of each of the following conditions precedent:precedent to effectiveness set forth in clauses (b) through (n) of Section 5.01 of the Amended and Restated Credit Agreement.
(1d) The Company shall pay by wire transfer of immediately available funds not later than 2:00 p.m. (Eastern time) (or such later time as the Administrative Agent shall have received (Amay agree in its sole discretion) from to the Borrower Joint Lead Arrangers and the Lender a duly executed original (or, if elected by to the Administrative Agent, an executed facsimile copy) as applicable, for the account of this Amendment each Existing Lender, Consenting Lender and New Lender (B) from the Borrowerif any), a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedesas applicable, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs fees and expenses due and payable as of the Effective Date under or required to be paid to such Person in connection with this Amendment and Agreement on or before the Credit Agreement, including any fees arising under or referenced Amendment Effective Date as provided in Section 5 of this Amendment and any costs and expenses payable under Section 6(g1(d) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date)above.
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6e) The representations and warranties of the Company and each other Loan Party contained in Section 3 of this Amendment (4) below or which are contained in any document furnished at any time under or in connection herewith, shall (i) with respect to representations and 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, in each case, on and as of the Effective Date with the same effect as if made on and as of the Amendment Effective Date.
. Upon such effectiveness, (7i) No Term Loans this Amendment Agreement shall be outstanding.
(b) From a binding agreement between the parties hereto and after their permitted assigns under the Effective Date, the Amended and Restated Credit Agreement is amended as set forth hereinand (ii) each party hereto agrees that its commitments and consents to this Amendment Agreement, once delivered, are irrevocable and may not be withdrawn. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will shall promptly notify the Borrower Company and the Lenders of the occurrence of the Amendment Effective DateDate in writing, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Amendment is subject to the provisions of Section 7.01 of the Credit Agreement. This Amendment shall become effective as of the date of the origination of the HEI Default when the Lender shall have received counterparts of this Amendment executed by the Borrower and have additionally received all of the following documents:
(a) The effectiveness Certified copies of Section 2 of this Amendment shall be subject to (i) the satisfaction of each resolutions of the following conditions precedent:
Board of Directors, (1ii) The Administrative Agent shall have received (A) from the Borrower approval of the Representative Director of the Guarantor evidencing approval of the Guaranty and the Lender a duly executed original matters contemplated hereby and thereby and (oriii) all documents evidencing other necessary corporate action and governmental approvals, if elected by the Administrative Agentany, an executed facsimile copy) of with respect to this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novationAmendment, the Revolving Credit Notes previously delivered by Guaranty and the Borrower under the Credit Agreement (the “Old Notes”))matters contemplated hereby and thereby.
(2b) The Administrative Agent shall have received evidence A certificate of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery Borrower and performance the Representative Director or a duly authorized officer of the Guarantor certifying the names and true signatures of the officers of the Borrower and the Guarantor authorized to sign this Amendment Documentsand the Guaranty, respectively, and the other documents to be delivered hereunder and thereunder.
(5c) The Administrative Agent shall have received all Counterparts of the Guaranty in the form attached as Exhibit A hereto, executed by the Guarantor.
(d) Favorable opinions of Bae, Xxx & Xee, xxunsel for the Guarantor, or other documents it or Korean counsel to the Guarantor, and the Corporate Counsel of the Guarantor, in substantially the form of Exhibits B and C hereto and as to such other matters as the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agentrequest.
(6e) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in Section 3 of this Amendment shall be true and 5 below are correct on and as of the Effective Date with the same effect date of such certificate as if though made on and as of the Effective Date.such date; and
(7ii) No Term Loans shall be outstanding.
(b) From and after the Effective DateAfter giving effect to this Amendment, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect no event has occurred and is hereby ratified and confirmed in all respectscontinuing that constitutes a Default.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Maxtor Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Fifth Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1i) The Administrative Agent or Banc of America Securities LLC ("BAS") shall have received from the Company all amounts payable under that certain fee letter dated as of February 26, 2002, delivered by the Company to BAS in connection herewith.
(ii) The Agent or BAS shall have received from the Company all amounts payable under Section 8(g) to the extent invoiced prior to the Effective Date.
(iii) The Agent shall have received (A) from the Borrower Parent, the Company and each other Loan Party and the Lender Majority Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Fifth Amendment.
(2iv) The Administrative Agent shall have received evidence of payment by the Borrower of in a form to its satisfaction all fees, costs and expenses due and payable as of the Effective Date under or those items listed in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).Schedule 1. ----------
(3v) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender Majority Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative AgentAgent and the Majority Lenders.
(6vi) The representations and warranties in Section 3 of this Fifth Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has executed this Fifth Amendment shall be outstandingdeemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Agent to such Lender for consent, approval, acceptance or satisfaction, or required hereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Parent, the Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Mail Well Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the date first above written when, and only when, the Agent shall have received counterparts of this Amendment executed by the Grantors. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 25 of the Security Agreement. Section 1 hereof shall become effective when, and only when, the Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) in form and substance reasonably satisfactory to the Agent (collectively, the “Amendment Documents”):
(a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:Security Agreement Supplement duly executed by Madison River Communications Corp.
(1b) The Administrative Agent shall have received (A) from the Borrower and the Lender a An Assumption Agreement duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original assuming the Obligations referred to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Agreement.
(2c) The Administrative Agent shall have received evidence Certificates evidencing the capital stock of payment by Madison River Communications Corp. being pledged under the Borrower of all feesSecurity Agreement and undated stock powers for any such certificate, costs and expenses due and payable as of the Effective Date under or duly executed in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date)blank.
(3d) The Administrative Agent shall have received from Certified copies of (i) the Borrower, in form and substance satisfactory to it, a Compliance Certificate as resolutions of September 30, 2009 calculated on a pro forma basis after giving effect to the Board of Directors of the Borrower approving this Amendment, the Security Agreement Supplement, and the Assumption Agreement and the matters contemplated hereby, and (ii) all documents evidencing other necessary action and governmental approvals, if any, with respect to the Amendment Documents and the matters contemplated hereby.
(4e) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy A certificate of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Personthe Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment, authorizing the other Amendment Documents, and the other documents to be delivered hereunder and thereunder.
(f) A favorable opinion of counsel for the Borrower, to the effect that:
(i) Each of the Amendment, the Security Agreement Supplement and Assumption Agreement, constitutes the valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms.
(ii) Neither the execution, delivery and or performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify by the Borrower of the occurrence Amendment, the Security Agreement Supplement or Assumption Agreement, nor the compliance by the Borrower with the terms and provisions thereof will contravene any provision of any Applicable Law of the Effective DateState of New York or any Applicable Law of the United States of America.
(iii) The Borrower is a corporation legally existing and in good standing under the laws of the State of Delaware.
(iv) The Borrower has the corporate power and authority to execute, deliver and perform all of its obligations under the Amendment, the Security Agreement Supplement and Assumption Agreement, and the execution and delivery of each of the Amendment, the Security Agreement Supplement and Assumption Agreement has been duly authorized by all requisite corporate action by the Borrower. The Amendment, the Security Agreement Supplement and Assumption Agreement have been duly executed and delivered by the Borrower.
(v) The execution and delivery by the Borrower of the Amendment, the Security Agreement Supplement and Assumption Agreement, and the performance by the Borrower of its obligations under the Amendment, the Security Agreement Supplement and Assumption Agreement, in accordance with its terms, do not conflict with the Certificate of Incorporation of the Borrower.
Appears in 1 contract
Samples: Security Agreement (Madison River Communications Corp.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and each of the Lender Lenders (i) a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Agreement; and (Bii) from the Borrowerif requested by any Lender, a duly executed original Note (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Annex 2.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement or the Guaranty (364-Day), in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Borrower.
(3) The Administrative Agent shall have received from the Borrower a certificate certifying the U.S. Subsidiaries and the Excluded U.S. Subsidiaries, which certification the Borrower may update at any time prior to March 31, 2003. Amended and Restated 364-Day Credit Agreement
(4) The Administrative Agent shall have received from the Borrower and each of its U.S. Subsidiaries a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of the Security Agreement, substantially in the form of Annex 5.
(5) The Administrative Agent shall have executed the amendment to the Intercreditor Agreement, substantially in the form of Annex 7, and shall have received from Bank of America (in its capacities as Administrative Agent under the Three Year Credit Agreement and as Collateral Agent) a duly executed original thereof.
(6) The Administrative Agent shall have received from the Borrower a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower in respect of the fiscal quarter of the Borrower ended November 30, 2002.
(7) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Original Agreement, including any fees arising under or referenced in Section 5 of this Amendment Agreement and any costs and expenses payable under Section 6(g) of this Amendment Agreement (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) 8) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy copies of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Personthe Borrower, authorizing the execution, delivery and performance of this Agreement, the Amendment DocumentsSecurity Agreement and each other document, agreement or instrument to be executed and delivered by it pursuant thereto, together with such incumbency certificates and/or other certificates of Responsible Officers of the Borrower, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as such in connection with this Agreement and each other Loan Document to which the Borrower is a party.
(59) The Administrative Agent shall have received an opinion of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent, and addressed to the Administrative Agent and the Lenders, dated the Effective Date.
(10) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(611) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made shall have occurred on and as of the Effective Date.
(7) No Term Loans shall be outstandingor before February 13, 2003.
(b) For purposes of determining compliance with the conditions specified in this Section 4(a), each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, Amended and Restated 364-Day Credit Agreement approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(c) From and after the Effective Date, the Credit Original Agreement is amended as set forth herein and is restated in its entirety to read as set forth in the Original Agreement with the amendments specified herein. Except as expressly amended pursuant hereto, and all outstanding Notes under the Credit Original Agreement shall remain unchanged be superseded and in full force replaced by the Notes delivered under this Agreement. All such previously outstanding Notes will be deemed cancelled upon the occurrence of the Effective Date and effect shall be returned to the Borrower promptly following the Effective Date. The Original Agreement (as amended and restated by this Agreement) is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject As a condition precedent to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) effectiveness of this Amendment and (B) from the BorrowerBank's agreements and obligations hereunder, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in Company, the form of Exhibit B-2 Corporate Guarantor, the Guarantor and Xxxxxxxx X. Xxxxxxx, as applicable, shall have taken the following actions and delivered to the Credit Agreement (but dated Bank the Effective Date following documents and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowerinstruments, in form and substance satisfactory to the Administrative AgentBank, a copy on or before July 31, 1996 (the "Closing Date"):
(a) The Company, the Corporate Guarantor, the Guarantor and Xxxxxxxx X. Xxxxxxx shall have duly executed and delivered this Amendment, amendments to Limited Guaranty and Security Agreements-Pledge, and such other Loan Documents and evidence of filings, acknowledgements or acceptances of any such documents, as the resolutions passed Bank may reasonably request or require, all duly executed and delivered by all parties thereto.
(b) The Company shall have delivered to the board Bank certificates of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance each of the Amendment DocumentsCompany and the Corporate Guarantor setting forth resolutions of its Board of Directors in form and substance reasonably satisfactory to the Bank with respect to this Amendment.
(5c) The Administrative Agent Company shall have received all other documents it or the Lender may reasonably request relating to any matters relevant heretopaid, in immediately available funds, all accrued and unpaid interest on the Revolving Note.
(d) The Company shall have paid, in immediately available funds, a restructuring fee in the amount of $5,000.
(e) The Company shall have paid all accrued and unpaid legal fees and expenses referred to in Section 8.7 of the Agreement and Section 7 hereof to the extent invoices for such fees and expenses have been delivered to the Company.
(f) The Company and the Corporate Guarantor shall have delivered to the Bank opinions of counsel, in form and substance satisfactory to the Administrative Agent.Bank and its counsel. * (Except as might be waived by written Agreement with the Bank)
(6g) The representations and warranties in Section 3 of this Amendment shall be true and correct on and Such other evidence as the Bank may reasonably request to establish the consummation of the Effective Date transactions contemplated hereby, the taking of all proceedings in connection herewith and compliance with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as conditions set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsthis Amendment.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Loan Agreement (Visual Numerics Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject amendments to the satisfaction of Existing Credit Agreement set forth in Section 1 above shall become effective on the date (the “Amendment No. 1 Effective Date”) each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.02 of the Existing Credit Agreement):
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3a) The Administrative Agent shall have received from the Borrower, Borrower a certificate in form and substance reasonably satisfactory to itthe Administrative Agent, a Compliance Certificate which certificate has been executed by the secretary of Borrower (or other such officer as may be acceptable to the Administrative Agent) and certifies that:
i. both before and after giving effect to amendments to the Existing Credit Agreement set forth in Section 1 above, the ITO Disposition and the payment of the Prepayment Amount (as defined below), no Default or Event of Default exists;
ii. the representations and warranties contained in Article III of the Credit Agreement and the other Loan Documents shall be true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of September 30such earlier date, 2009 calculated except that the representations and warranties contained in Section 3.04 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 5.01(a) and (b) of the Existing Credit Agreement, respectively; and
iii. the Borrower shall be in compliance, on a pro forma basis (after giving effect to this Amendmentamendments to the Existing Credit Agreement set forth in Section 1 above, the ITO Disposition and the payment of the Prepayment Amount (as defined below)) with the requirement contained in Section 6.05(a).
(4b) ITO Disposition has occurred or will occur on the Amendment No. 1 Effective Date.
(c) Borrower shall have paid the Prepayment Amount.
(d) Borrower shall have paid (i) to the Administrative Agent, for the benefit of each Lender party hereto, an amount equal to 0.05% of the aggregate amount of each such Lender’s Commitment immediately prior to the Amendment No. 1 Closing Date and (ii) to J.X. Xxxxxx Securities LLC, as lead arranger with respect to this Amendment, such fees as Borrower and J.X. Xxxxxx Securities LLC have separately agreed; provided, however, nothing shall require the Borrower to pay such amounts if the ITO Disposition does not occur.
(e) The Administrative Agent shall have received from the Borrowerreimbursements for all reasonable documented and out-of-pocket expenses (including reasonable fees and expenses of Sidley Austin LLP, in form and substance satisfactory counsel to the Administrative Agent, a copy ) that are required to be reimbursed or paid by the Borrower pursuant to Section 10.03(a) of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery Credit Agreement and performance of that have been invoiced prior to the Amendment DocumentsNo. 1 Effective Date.
(5f) The Administrative Agent shall have received all such other documents it or as the Lender Administrative Agent may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agentrequest.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Acxiom Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be is subject to the satisfaction of each of the following conditions precedent:
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a counterparts of this Amendment duly executed original (orby the Loan Parties, if elected by the Lenders, the Issuing Banks, the Swingline Lender and the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2b) The Administrative Agent shall have received evidence a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the effective date of payment this Amendment) of DLA Piper LLP, counsel for the Loan Parties, covering such matters relating to the Loan Parties or the Credit Agreement (including the Credit Agreement as amended by this Amendment) as the Administrative Agent shall reasonably request. The Borrower of all feeshereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, costs existence and expenses due and payable as good standing of the Effective Date under or in connection with Loan Parties, the authorization of this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment Transactions and any costs and expenses payable under Section 6(g) of this Amendment other legal matters relating to such Loan Parties or the Credit Agreement (including the Credit Agreement as amended by this Amendment), all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received, for the account of each Lender 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 fee in an amount equal to the amount previously agreed upon by the Borrower and disclosed to the Lenders.
(e) The Administrative Agent shall have received payment and/or reimbursement of the Administrative Agent’s and its affiliates’ fees and out-of-pocket expenses (including, to the extent invoiced, reasonable fees, charges and disbursements of counsel for the Administrative Agent, ) in connection with the Loan Documents and required to be paid pursuant to the extent invoiced on or prior to the Effective Date)Credit Agreement.
(3f) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as made such reallocations of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy each Lender’s Applicable Percentage of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, Revolving Exposure under the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, are necessary in order that the Revolving Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the Revolving Exposure under the Credit Agreement shall remain unchanged as amended hereby. The Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the assignment of any Eurocurrency Loans and the reallocation described in this clause (f), in each case on the terms and in full force and effect and is hereby ratified and confirmed the manner set forth in all respects.
(c) The Administrative Agent will notify the Borrower Section 2.16 of the occurrence of the Effective DateCredit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Aceto Corp)
Conditions of Effectiveness. This Amendment 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 hereof shall become effective as of the first date (the “Third Amendment Effective Date”) on which the following conditions shall have been satisfied (or waived):
(a) The effectiveness of Section 2 Administrative Agent (or its counsel) shall have received counterparts of this Amendment shall be subject to Amendment, duly executed by Holdings, each Borrower, each Subsidiary Guarantor, the satisfaction of Administrative Agent and each of the following conditions precedent:Lender.
(1b) The Administrative Agent shall have received a certificate of a Responsible Officer of the Lead Borrower certifying as of the Third Amendment Effective Date that the conditions in clauses (Ac) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copyd) of this Amendment Section 5 have been satisfied.
(c) The representations and (B) from warranties of the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) Borrowers contained in Article III of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement and Section 6 of this Amendment shall be true and correct in all material respects on and as of the Third Amendment Effective Date; provided that, in the case of any representation and warranty which expressly relates to a specific date or period, such representation and warranty shall be true and correct in all material respects as of the respective dates or for the respective period, as the case may be; provided, further, that, if any representation and warranty is qualified by or subject to a “materiality”, “material adverse effect”, “material adverse change” or similar term or qualification, such representation and warranty shall be true and correct (but dated after giving effect to any qualification therein) in all respects on such respective dates.
(d) No Default under Section 7.01(a), 7.01(f) or 7.01(g) of the Effective Date Original ABL Credit Agreement or Event of Default under the Original ABL Credit Agreement shall exist immediately prior to giving effect to this Amendment, and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower no Event of Default under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis exist immediately after giving effect to this Amendment.
(e) The Lead Borrower shall have paid (or caused to be paid) all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Lead Arranger (as defined in the engagement letter, dated as October 4, 2022 (the “Engagement Letter”), by and among the US Borrower, the Canadian Borrower, Bank of America and 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 LLP and J&A Xxxxxxxxx, 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 Third Amendment Effective Date.
(f) The Lead Borrower shall have paid (or caused to be paid) (i) to the Administrative Agent, for the account of each Lender that has delivered a counterpart of this Amendment in the form attached hereto as Annex A, a consent fee equal to 0.10% of the aggregate amount of Commitments of such Lender as of the Third Amendment Effective Date and (ii) without duplication, all other fees required to be paid pursuant to the fee letter, dated as of October 4, 2022, by and among the US Borrower, the Canadian Borrower, Bank of America and BofA Securities. #96123732v8 133208524_1
(g) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory an updated North American Borrowing Base Certificate at least one (1) Business Day prior to the Administrative AgentThird Amendment Effective Date, a copy but assuming this Amendment had become effective and the Third Amendment Effective Date had occurred. For purposes of determining whether the resolutions passed by the board of directors of the Borrower, certified conditions specified in this Section 5 have been satisfied as of the Third Amendment Effective Date Date, each Lender by the Secretary or an Assistant Secretary its execution and delivery of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 a counterpart of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Datedeemed 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 such Lender.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Joinder shall become effective as of the date (the “Effective Date”) on which the following conditions shall have been satisfied (or waived) (and such conditions to the extent inconsistent with Section 3.16(b) of the Credit Agreement shall supersede such Section as provided therein):
(a) The effectiveness of Section 2 Administrative Agent (or its counsel) shall have received counterparts of this Amendment shall be subject Joinder executed by the Borrower, the Subsidiary Guarantors and the 2017 Incremental Revolving Lender.
(b) After giving effect to this Joinder and the satisfaction of transactions contemplated hereby (i) each of the following conditions precedent:representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Effective Date as if made on and as of such date (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date), and (ii) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of the transactions contemplated hereby.
(1c) The Administrative Agent shall have received (A) from a legal opinion of O’Melveny & Myers LLX, xxunsel to the Borrower Loan Parties, addressed to the Administrative Agent and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement 2017 Incremental Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the BorrowerLender, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6d) The representations Administrative Agent shall have received a certificate of the Borrower substantially in the form of Exhibit F to the Credit Agreement (with such modifications as necessary to make such certificate applicable to the transactions contemplated pursuant to this Joinder) with appropriate insertions and warranties attachments including the certificate of incorporation of the Borrower certified by the relevant authority of the jurisdiction of organization of the Borrower.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower confirming compliance with the conditions precedent set forth in Section 3 clause (b) of this Amendment Section 4.
(f) The Borrower shall be true have paid all reasonable and correct on documented costs and as expenses of the Effective Date Administrative Agent in connection with the same effect preparation, negotiation, execution and delivery of this Joinder (including the reasonable and documented fees, disbursements and other charges of Shearman & Sterling LLP as if made on and as of special New York counsel to the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Increase Revolving Joinder to Credit Agreement (Microsemi Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective on and as of the satisfaction of each date (such date, the “Amendment No. 1 Effective Date”) upon which all of the following conditions precedentset forth in this Section 5 shall have been satisfied:
(1a) The Substantially concurrent with or prior to the funding of the Amendment No. 1 Term Loan on the Amendment No. 1 Effective Date, the Amendment No. 1 Acquisition will have been consummated in accordance with the terms of the Amendment No. 1 Acquisition Agreement and all conditions precedent to the consummation of the Amendment No. 1 Acquisition, as set forth in the Amendment No. 1 Acquisition Agreement, will have been satisfied without any waiver, amendment, supplement or other modification that is materially adverse to the interests of Administrative Agent or Lenders unless Administrative Agent will have consented thereto, such consent not to be unreasonably withheld or delayed.
(b) Receipt by Administrative Agent of counterparts of (i) this Amendment duly executed by each Credit Party, Lenders and Administrative Agent, (ii) a Joinder Agreement to the Credit Agreement duly executed by Merger Sub, Target (BiteSquad) and its Subsidiaries and the Administrative Agent, with all schedules and attachments contemplated thereby, (iii) a Joinder Agreement to the Pledge and Security Agreement duly executed by Merger Sub, Target (BiteSquad) and its Subsidiaries and the Collateral Agent, with all schedules and attachments contemplated thereby, (iv) a Pledge Amendment to the Pledge and Security Agreement duly executed by Holdings and Target (BiteSquad) and the Collateral Agent, with all schedules and attachments contemplated thereby, (v) a Perfection Certificate duly executed by the Borrower, with all schedules and attachments contemplated thereby, and (iv) an Intellectual Property Security Agreement duly executed by Target (BiteSquad) and its applicable Subsidiaries with respect to the trademarks owned by such Persons, with all schedules and attachments contemplated thereby.
(c) Administrative Agent shall have received (Ai) from the Borrower and the Lender a duly executed original (orcertificate of each Credit Party, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Amendment No. 1 Effective Date and also stating executed by a secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that it replaces attached thereto is a true and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a complete copy of the resolutions passed by the or written consents of its shareholders, board of directors directors, board of the Borrowermanagers, certified as of the Effective Date by the Secretary members or an Assistant Secretary of such Person, other governing body authorizing the execution, delivery and performance of the Credit Documents to which it is a party and, in the case of Borrower, the borrowings hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Credit Party authorized to sign the Credit Documents to which it is a party on the Amendment DocumentsNo. 1 Effective Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of such Credit Party certified as of a recent date by the relevant authority of the jurisdiction of organization of such Credit Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (ii) a good standing (or equivalent) certificate as of a recent date for such Credit Party from its jurisdiction of organization.
(d) On the Amendment No. 1 Effective Date after giving effect to this Amendment, (i) the Specified Merger Agreement Representations (as defined below) shall be true and correct to the extent required by the last paragraph of this Section 5 and the Specified Representations (as defined below) shall be true and correct in all material respects (other than any Specified Representations which are qualified by materiality, material adverse effect or similar language, which Specified Representations shall be true and correct in all respects after giving effect to such qualification); provided, that to the extent any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the definition thereof shall be the definition of “BiteSquad Material Adverse Effect” (as defined in the Amendment No. 1 Acquisition Agreement) for purposes of the making or deemed making of such Specified Representation on or as of the Amendment No. 1 Effective Date (or any date prior thereto), (ii) no event shall have occurred and be continuing or would result from the consummation of the Amendment No. 1 Term Loan that would constitute an Event of Default under Sections 8.1(a), (f) or (g) of the Existing Credit Agreement, (iii) since the date of the most recent balance sheet included in the Interim Financial Statements (as defined in the Amendment No. 1 Acquisition Agreement), there shall not have occurred any BiteSquad Material Adverse Effect (as defined in the Amendment No. 1 Acquisition Agreement and (iv) Administrative Agent shall have received a certificate of each Credit Party, dated the Amendment No. 1 Effective Date and executed by an Authorized Officer thereof, confirming that as of the Amendment No. 1 Effective Date the foregoing clauses (i), (ii) and (iii) are satisfied.
(e) Administrative Agent shall have received a Solvency Certificate from the chief financial officer (or other financial officer with reasonably equivalent responsibilities) of Holdings certifying as to the matters set forth therein dated as of the Amendment No. 1 Effective Date.
(f) Administrative Agent shall have received an Amendment No. 1 Term Loan Funding Notice with respect to the Amendment No. 1 Term Loan in accordance with the requirements of the Amended Credit Agreement.
(g) Subject in all respects to the last paragraph of this Section 5, all documents and instruments required to create and perfect Administrative Agent’s security interests in the Collateral shall have been executed and delivered by Holdings, Borrower, Target (BiteSquad) The and its Subsidiaries and any other Guarantors and, if applicable, be in proper form for filing.
(h) Administrative Agent shall have received a completed Perfection Certificate dated the Amendment No. 1 Effective Date and executed by an Authorized Officer of each Credit Party, together with all attachments contemplated thereby, together with the delivery of (A) the results of a recent lien search, by a Person satisfactory to Collateral Agent, of, including but not limited to, all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of Target (BiteSquad) in the jurisdictions specified in the Perfection Certificate, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens).
(i) Subject to Section 6 hereof, Collateral Agent shall have received a certificate from Borrower’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained with respect to Target (BiteSquad) pursuant to Section 5.5 of the Amended Credit Agreement is in full force and effect, naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.5 of the Amended Credit Agreement.
(j) Parent and its Subsidiaries and Target (BiteSquad) shall have (i) repaid in full all Indebtedness of Target (BiteSquad) and its Subsidiaries (other than Indebtedness permitted to remain outstanding after the Amendment No. 1 Effective Date) (collectively, the “Amendment No. 1 Existing Indebtedness”), (ii) terminated any commitments to lend or make other extensions of credit thereunder and (iii) delivered to Administrative Agent all documents or instruments necessary to release all Liens securing Amendment No. 1 Existing Indebtedness or other obligations of Parent and its Subsidiaries or Target (BiteSquad) thereunder being repaid on the Amendment No. 1 Effective Date.
(k) Prior to or simultaneously with the initial incurrence of the Amendment No. 1 Term Loan, the Amendment No. 1 Equity Issuance shall be consummated.
(l) Administrative Agent shall have received (i) the audited financial statements of Target (BiteSquad) and its Subsidiaries, for the Fiscal Years ended December 31, 2016 and 2017, consisting of consolidated balance sheets, statements of operations, statements of members’ equity and statements of cash flows for such Fiscal Years, and (ii) for the interim period from January 1, 2018 to September 30, 2018, unaudited financial statements of Target (BiteSquad) and its Subsidiaries, consisting of consolidated balance sheets, statements of operations, statements of members’ equity and statements of cash flows for such interim period, in the case of clauses (i) and (ii), certified by the chief financial officer of Target (BiteSquad) that they fairly present, in all material respects, the financial condition of Target (BiteSquad) and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year-end adjustments.
(m) Lenders and their respective counsel shall have received originally executed copies of a customary opinion of (i) Winston & Xxxxxx LLP, counsel for the Credit Parties and Target (BiteSquad) and its Subsidiaries, and (ii) Xxxx, Plant, Xxxxx, Xxxxx & Xxxxxxx, P.A., local Minnesota counsel for Target (BiteSquad) and its Subsidiaries, in each case dated as of the Amendment No. 1 Effective Date in form and substance satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(n) Parent, Administrative Agent and Lenders (as defined therein) party to the Parent Convertible Notes Credit Agreement will have executed and delivered an amendment to the Parent Convertible Notes Credit Agreement in form and substance reasonably satisfactory to Administrative Agent.
(o) No later than two Business Days in advance of the Amendment No. 1 Effective Date, Administrative Agent shall have received all documentation and other documents it or information reasonably requested by the Lender may reasonably request relating with respect to any matters relevant heretoTarget (BiteSquad) and its Subsidiaries at least 10 days in advance of the Amendment No. 1 Effective Date, all in form which documentation or other information is required by regulatory authorities under applicable “know your customer” and substance satisfactory to anti-money laundering rules and regulations, including the Administrative AgentUSA Patriot Act.
(6p) The Borrower shall have paid all fees and expenses required to be paid on the Amendment No. 1 Effective Date related to the Transactions occurring on or about the date hereof and payable to Administrative Agent, Lenders and third party service providers and, with respect to expenses, included in a summary invoice delivered to Borrower at least two Business Days prior to the Amendment No. 1 Effective Date (which amounts may be offset against the proceeds of the Amendment No. 1 Term Loan). Notwithstanding anything to the contrary in this Amendment, (i) the only representations and warranties the accuracy of which shall be a condition to the availability and funding of the Amendment No. 1 Term Loan on the Amendment No. 1 Effective Date shall be (A) such of the representations and warranties made by Target (BiteSquad) in the Amendment No. 1 Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Parent (or its applicable affiliate) has the right to terminate its obligations pursuant to the Amendment No. 1 Acquisition Agreement or otherwise decline to consummate the Amendment No. 1 Acquisition pursuant the Amendment No. 1 Acquisition Agreement as a result of a breach of such representations and warranties in Section 3 the Amendment No. 1 Acquisition Agreement (to such extent, the “Specified Merger Agreement Representations”) and (B) the Specified Representations (as defined below) made by Holdings, Borrower, Target (BiteSquad) and its subsidiaries and the other Guarantors in the Credit Documents, and (ii) the terms of this Amendment the Credit Documents shall be true and correct on and as in a form such that they do not impair the availability or funding of the Amendment No. 1 Term Loan on the Amendment No. 1 Effective Date with if the same effect as if made applicable conditions set forth in this Section 5 are satisfied (it being understood that, to the extent any security interest in any Collateral is not or cannot be provided and/or perfected on and as the Amendment No. 1 Effective Date (other than the perfection of the Effective Date.
security interest in the certificated equity interests of Borrower, Target (7BiteSquad) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged its subsidiaries and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.any other subsidiary Guarantor
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Waitr Holdings Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and each of the Lender Lenders (i) a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment ; and (Bii) from the Borrowerif requested by any Lender, a duly executed original Note (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 B to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Agreement.
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The the Administrative Agent shall have received from and the Borrower, in form and substance satisfactory to the Administrative AgentLenders, a copy of the resolutions passed by the board of directors (or related committee thereof) of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(4) The Administrative Agent shall have received a favorable opinion of counsel to the Borrower, addressed to the Agent and each Lender, with respect to this Amendment, in form and substance satisfactory to the Agent.
(5) The Administrative Agent shall have received documentation in form and substance reasonably satisfactory to it evidencing the increase of the Aggregate Commitments to $2,000,000,000, including Commitment Increase Agreements from any existing Lenders increasing their Commitments, and New Lender Agreements from any Eligible Assignees acceding to the Credit Agreement.
(6) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent.
(67) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has signed this Amendment shall be outstandingdeemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein, and all outstanding Notes under the Credit Agreement shall be superseded and replaced by the Notes delivered under this Amendment. All such previously outstanding Notes will be deemed cancelled upon the occurrence of the Effective Date. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Amendment Agreement (Ebay Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Borrower, the Required Lenders, and the Lender Administrative Agent, a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copyor “pdf” copy with originals to follow) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(62) The representations and warranties in Section 3 of this Amendment shall be true and correct in all material respects on and as of the Effective Date immediately before (in the case of the Existing Credit Agreement) and immediately after (in the case of the Credit Agreement) giving effect to this Amendment, with the same effect as if made on and as of the Effective Date, except (i) to the extent that such representations and warranties are qualified by materiality, they shall be true and correct on and as of the Effective Date, and (ii) 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 except to the extent qualified by materiality, then they shall be true and correct as of such earlier date.
(73) No Term Loans shall be outstandingDefault has occurred and is continuing (or would result from the amendment of the Existing Credit Agreement contemplated hereby).
(b) For purposes of determining compliance with the conditions specified in Section 4(a), each 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
(c) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Jacobs Engineering Group Inc /De/)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be is subject to the satisfaction of each of conditions precedent that the following conditions precedent:
(1) The Administrative Agent shall have received the following:
(A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) originals of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in Lenders and the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).Agent;
(2B) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed Omnibus Reaffirmation Agreement duly executed by each of the board Loan Parties in the form attached hereto as Exhibit B;
(C) a written opinion (addressed to the Agent and the Lenders and dated the date hereof) of directors of Xxxxxx & Xxxxxxx LLP, counsel to the Borrower, certified as with respect to noncontravention of laws and material indebtedness, enforceability of the Effective Date by Loan Documents, and such other matters relating to the Secretary Borrower, this Amendment or an Assistant Secretary the Loan Documents as the Administrative Agent shall reasonably request;
(D) a written opinion (addressed to the Agent and the Lenders and dated the date hereof) of in-house counsel to the Borrower, with respect to general corporate matters, noncontravention of laws and material indebtedness, and such Personother matters relating to the Borrower, this Amendment or the Loan Documents as the Administrative Agent shall reasonably request;
(E) a certificate of the secretary or assistant secretary of the Borrower certifying resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Amendment and each document executed in connection herewith;
(F) an executed copy of that certain Assignment and Asssumption Agreement dated as of the Amendment Documentsdate hereof, between The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Assignor and Union Bank, N.A., as Assignee;
(G) executed copies of each of the confirmatory grants of security interests in intellectual property set forth on Exhibit C attached hereto.
(5H) The Administrative all fees and expenses due and payable on or prior to the date hereof in connection with this Amendment; and
(I) such other documents, instruments and agreements as the Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agentrequest.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Conditions of Effectiveness. (a) The effectiveness of Section Sections 2 and 5 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement or the Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Borrower.
(3) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date date hereof hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 6 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Datedate hereof).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy copies of the resolutions passed by the board Seventh Amendment and Waiver (3-Year) of directors of the Borrower, certified as of the Effective Date date hereof by the Secretary or an Assistant Secretary of such Personthe Borrower, authorizing the execution, delivery and performance of this Amendment, together with such incumbency certificates and/or other certificates of Responsible Officers of the Borrower, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as such in connection with this Amendment Documentsand each other Loan Document to which the Borrower is a party.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations and warranties For purposes of determining compliance with the conditions specified in Section 3 of 4(a), each Lender that has executed this Amendment shall be true and correct on and as of deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Effective Date with the same effect as if made on and as of the Effective DateAdministrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(7) No Term Loans shall be outstanding.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence satisfaction of the Effective Dateconditions precedent in this Section 4.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from each Borrower, each L/C Issuer, the Borrower Required Lenders, the Swing Line Lender and the Lender Administrative Agent, a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copyor “pdf” copy with originals to follow) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(62) The representations and warranties in Section 3 of this Amendment shall be true and correct in all material respects on and as of the Effective Date immediately before (in the case of the Existing Credit Agreement) and immediately after (in the case of the Credit Agreement) giving effect to this Amendment, with the same effect as if made on and as of the Effective Date, except (i) to the extent that such representations and warranties are qualified by materiality, they shall be true and correct on and as of the Effective Date, and (ii) 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 except to the extent qualified by materiality, then they shall be true and correct as of such earlier date.
(73) No Term Loans shall be outstandingDefault has occurred and is continuing (or would result from the amendment of the Existing Credit Agreement contemplated hereby).
(b) For purposes of determining compliance with the conditions specified in Section 4(a), each 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
(c) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Jacobs Engineering Group Inc /De/)
Conditions of Effectiveness. This Agreement shall become effective on the 2022 Increased Amount Date upon the satisfaction of the conditions precedent set forth in this Section 4:
(a) The effectiveness of Section 2 Administrative Agent (or its counsel) shall have received from each Borrower and from each other party hereto (including the Administrative Agent, each 2022 Incremental Term Loan Lender and each other Lender and Voting Participant) an executed signature page counterpart of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:Agreement.
(1b) The Administrative Agent shall have received an officer’s certificate from each Borrower including (Ai) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) authorization of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance by such Borrower of this Agreement and, in the case of RLP, the borrowing of the Amendment Documents.
2022 Incremental Term Loan Advances, (5ii) The Administrative Agent a certification that, after giving effect to the funding of the 2022 Incremental Term Loan Facility on a pro forma basis, Rayonier shall have received all other documents it or the Lender may reasonably request relating to any matters relevant heretoa Leverage Ratio not greater than 52.5%, all in form (iii) before and substance satisfactory after giving effect to the Administrative Agent.
(6) The 2022 Incremental Term Loan Advances, each of the representations and warranties in Section 3 Article IV of this Amendment the Amended Credit Agreement shall be true and correct on and in all material respects (or if qualified by materiality or material adverse effect, in all respects) as of the Effective Date 2022 Increased Amount Date, or if such representation speaks of an earlier date, as of such earlier date, (iv) no default or event of default under the Amended Credit Agreement shall have occurred and be continuing or would result from the borrowing of the 2022 Incremental Term Loan Advances and (v) a certification that, after giving effect to the funding of the 2022 Incremental Term Loan Facility on a pro forma basis, Rayonier shall be in compliance with the same effect as if made covenants set forth in Section 5.04 of the Amended Credit Agreement (calculated on and a pro forma basis, as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective 2022 Increased Amount Date, but based upon the financial statements delivered pursuant to Section 5.01(k) of the Amended Credit Agreement is amended as set forth herein. Except as expressly amended pursuant heretofor the Fiscal Quarter ended September 30, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects2022).
(c) The Administrative Agent will notify shall have received a duly executed copy of a guarantee agreement with respect to the 2022 Incremental Term Loan Facility in the form attached hereto as Exhibit C.
(d) Each 2022 Incremental Term Loan Lender requesting a 2022 Incremental Term Loan Note shall have received a copy of such 2022 Incremental Term Loan Note duly executed by RLP.
(e) The Administrative Agent shall have received, at least two (2) Business Days prior to the 2022 Increased Amount Date, (i) all documentation and other information required by authorities under applicable “Know Your Customer” and Anti-Terrorism and Anti-Corruption Laws and regulations, including, without limitation, the USA PATRIOT Act and (ii) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case, to the extent requested in writing by the Administrative Agent at least three (3) Business Days prior to the 2022 Increased Amount Date.
(f) The Administrative Agent shall have received the fees to be received on the 2022 Increased Amount Date separately agreed to between the Administrative Agent and Rayonier and shall have received, to the extent invoiced in reasonable detail at least one (1) Business Day prior to the 2022 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 occurrence Amended Credit Agreement in connection with the preparation, negotiation, execution and delivery of the Effective Datethis Agreement.
Appears in 1 contract
Samples: Incremental Term Loan Agreement and Amendment to Guarantee Agreement (Rayonier, L.P.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable become effective as of the Effective Date under or in connection with this Amendment date hereof when, and the Credit Agreementonly when, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent behalf of Banks, shall have received from the Borrowerreceived, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.the following:
(4a) The Administrative Agent shall have received from the Counterparts of this Amendment duly executed by Borrower, in form KeyBank and substance satisfactory Synovus Bank;
(b) A certificate executed by the Chief Financial Officer of Borrower, certifying to the Administrative Agent, a copy Agent and Banks that each of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in made pursuant to Section 3 9 of this Amendment shall be true and correct on and in all material respects as of the Effective Date with the same effect as if made on and as of the First Amendment Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.;
(c) The Administrative Evidence satisfactory to it that the New Revolving Credit Facility is in effect and the Synovus Letters of Credit are deemed to be letters of credit issued under the New Revolving Credit Facility;
(d) Payment by Borrower to Agent will notify for the Borrower account of each Bank (determined prior to giving effect to the consummation of the occurrence Rollover Transactions) of all accrued and unpaid Facility Fees and Letter of Credit Fees with respect to the Letters of Credit (including the Synovus Letters of Credit and the KeyBank Letters of Credit), to but not including the First Amendment Effective Date (and calculated without giving effect to the termination of participation interests made pursuant to this Amendment);
(e) Payment by Borrower to Agent, for the account of each Bank (determined after giving effect to the consummation of the Effective DateRollover Transactions) of the extension fee required under the terms of §3.1(b)(ii)(D) of the Facility Agreement; and
(f) Payment of all reasonable and documented expenses incurred by Agent in connection with the execution and delivery of this Amendment, together with reasonable fees and actually incurred expenses of Agent’s counsel with respect to this Amendment and other post-closing matters, in each case to the extent invoiced at least one (1) Business Day prior to the date hereof.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Forestar Group Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (Ai) from counterparts of this Amendment executed by the Borrower and the each Lender a duly executed original (or, if elected by as to any of the Lenders, advice satisfactory to the Administrative AgentAgent that such Lender has executed this Amendment, an executed facsimile copy(ii) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note consent attached hereto (the “New NoteConsent”) substantially in executed by each of the form of Exhibit B-2 Guarantors, and (iii) a Note payable to the Credit Agreement (but dated order of each Lender requesting the Effective Date and also stating that it replaces and supersedes, without novation, the same in a principal amount equal to such Lender’s respective Revolving Credit Notes previously delivered Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Borrower under the Credit Agreement (the “Old Notes”)Amendment Effective Date, in which case as of such specific date).
(2c) The No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges fees and disbursements expenses of counsel for the Administrative Agent, to ) due and payable on the extent invoiced on or prior to the Amendment Effective Date)Date shall have been paid in full.
(3e) The Administrative Agent shall have received from Certified copies of (i) the Borrowerresolutions of the Board of Directors, in form general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and substance satisfactory to itthe matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, a Compliance Certificate as of September 30if any, 2009 calculated on a pro forma basis after giving effect with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(4f) The Administrative Agent shall have received from A certificate of the Borrower, Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent.
(g) An opinion (or opinions) of counsel to the Borrower in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) . The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 effectiveness of this Amendment shall be true and correct on and as is conditioned upon the accuracy of the Effective Date with factual matters described herein. This Amendment is subject to the same effect as if made on and as provisions of Section 9.01 of the Effective DateCredit Agreement.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness Agreement shall become effective as of Section 2 the Effective Date of this Amendment shall be subject to Agreement upon the satisfaction of each all of the following conditions precedentconditions:
(1i) The Borrowers shall have delivered to Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed an original (or, if elected by the Administrative Agent, an or executed facsimile faxed or electronic copy) of this Amendment and (B) from the BorrowerAgreement, a duly executed original by each of the Loan Parties;
(or an ii) Borrowers shall have delivered to Administrative Agent a fully executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Parent PPP Loan Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously application submitted in connection with the Parent PPP Loan and any other documents or instruments executed or delivered by in connection therewith and the Borrower under the Credit Agreement (the “Old Notes”)).same shall be in full force and effect, and shall be satisfactory in all respects to Administrative Agent;
(2iii) The Administrative Agent shall have received evidence of payment by the Borrower first Intercompany Forgivable PPP Loan, in form and substance satisfactory to Administrative Agent, provided that Borrowers shall deliver to the Administrative Agent evidence of all feeseach subsequent Intercompany Forgivable PPP Loan promptly following the execution and delivery of such loan;
(iv) Administrative Agent shall have received a PPP Loan Expense Certificate for the period prior to the date hereof;
(v) each of the representations and warranties contained in Section 6 of this Agreement shall be true, costs correct and expenses due and payable accurate as of the Effective Date under or date of this Agreement; and
(vi) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Amendment and Agreement or any of the Credit Agreementtransactions arising hereunder or otherwise related hereto or referred to herein, including any fees arising under actual out-of-pocket costs, expenses, charges or referenced in Section 5 expenses of this Amendment Administrative Agent and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations parties hereto specifically acknowledge and warranties in Section 3 agree that: (i) the execution and delivery of this Amendment Agreement shall not be true deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and correct on and as (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinother Loan Documents. Except as expressly amended pursuant hereto, the Credit Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and is are hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify , and the Borrower Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the occurrence Guarantors party hereto: (i) specifically consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to which it is a party; (iii) reaffirms the waivers of each and every one of the Effective Datedefenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of any other party under the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Live Oak Acquisition Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment This Agreement shall be subject to the become effective upon satisfaction of each of the following conditions precedent:
(1i) The Administrative Agent Lender shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
Lender four (4) The Administrative Agent copies of this Agreement duly executed by each Borrower (including PHCIS) and consented to by each Guarantor;
(ii) Lender shall have received from the Borrower, in form and substance satisfactory to Lender an executed Purchase Agreement and all exhibits and schedules thereto and all other documents and agreements executed in connection therewith, including, but not limited to the Administrative AgentEmployment Agreement, Non-competition Agreement, Tax Provisions Agreement, Assignment and Assumption Agreement and Registration Rights Agreement;
(iii) Accuhealth and/or PHCIS shall have obtained all necessary consents with respect to each contract, lease, and agreement being assigned to Accuhealth and/or PHCIS pursuant to the Purchase Agreement. Accuhealth and PHCIS hereby covenant that no conditions to effectiveness of the Purchase Agreement shall be waived by Accuhealth or PHCIS without Lender's prior written consent, such consent not to be unreasonably withheld;
(iv) Lender shall have received an executed Amended and Restated Term Note in the form attached hereto as Exhibit A,
(v) Lender shall have received in form and substance satisfactory to Lender a Collateral Assignment executed by Accuhealth with respect to its rights under the Purchase Agreement;
(vi) Each document (including, without limitation, any Uniform Commercial Code financing statement) required by this Agreement or under law or reasonably requested by Lender to be filed, registered or recorded in order to create, in favor of Lender, a perfected security interest in or lien upon the Collateral owned by PHCIS 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 Lender 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;
(vii) Lender shall have received a copy of the resolutions passed by the board of directors in form and substance reasonably satisfactory to Lender, of the BorrowerBoard of Directors of PHCIS authorizing (x) the execution, certified as delivery and performance of this Agreement, and (y) the granting by PHCIS of the Effective Date Liens upon the Collateral certified by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance PHCIS as of the Amendment Documents.date of this 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;
(5viii) The Administrative Agent Lender shall have received a copy of the Articles or Certificate of Incorporation of PHCIS, and all amendments thereto, certified by the Secretary of State or other documents it appropriate official of its jurisdiction of incorporation together with copies of the By-Laws of PHCIS certified as accurate and complete by the Secretary or an Assistant Secretary of PHCIS;
(ix) Lender shall have received good standing certificates for PHCIS dated not more than thirty (30) days prior to the date of this Agreement, issued by the Secretary of State or other appropriate official of PHCIS's jurisdiction of incorporation and each jurisdiction where the conduct of PHCIS's business activities or the ownership of its properties necessitates qualification;
(x) Lender may reasonably request relating to any matters relevant heretoshall have received the executed legal opinions of Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP and Crummy, all Del Deo, Dolan, Griffinger & Xxxxxxxxx, each in form and substance satisfactory to Lender regarding the Administrative Agent.due authorization, enforceability and validity of this Agreement by Borrowers (other than PHCIS) and PHCIS, respectively, and the transactions contemplated herein;
(6xi) The representations Lender shall have received in form and warranties substance satisfactory to Lender, certified copies of PHCIS's casualty insurance policies, together with loss payable endorsements on Lender's standard form of loss payee endorsement naming Lender as loss payee, and certified copies of PHCIS's liability insurance policies, together with endorsements naming Lender as a co-insured;
(xii) Lender shall have received a duly executed letter agreement regarding the use of the lockbox account currently used with respect to the Borrowers (other than PHCIS) for the collection or servicing of the Accounts and proceeds of the Collateral of PHCIS;
(xiii) Lender shall have received in Section 3 form and substance satisfactory to Lender all landlord, mortgagee or warehousemen agreements;
(xiv) Lender shall have reviewed all material contracts of this Amendment PHCIS including, without limitation, leases, union contracts, labor contracts, vendor supply contracts, license agreements and distributorship agreements and such contracts and agreements shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.satisfactory in all respects to Lender;
(7xv) No Term Loans Lender shall be outstanding.
have received (a) schedules describing all Receivables or Medicare/Medicaid Receivables and (b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.confirmatory written assignments of such Receivables or Medicare/Medicaid Receivables to Lender; and
(cxvi) The Administrative Agent will notify the Borrower Lender shall have received such other certificates, instruments, documents and agreements as may reasonably be required by Lender or its counsel, each of the occurrence of the Effective Datewhich shall be in form and substance satisfactory to Lender and its counsel.
Appears in 1 contract
Samples: Amendment No. 3 and Joinder Agreement (Accuhealth Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and each of the Lender requisite Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g5(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The the Administrative Agent shall have received from and the Borrower, in form and substance satisfactory to the Administrative AgentLenders, a copy of the resolutions passed by the board of directors (or related committee thereof) of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(54) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent.
(65) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has signed this Amendment shall be outstandingdeemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Amendment Agreement (Ebay Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company, and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent, in form and substance satisfactory to the Administrative Agent, of each Subsidiary Guarantor in its capacity as such to the execution and delivery hereof by the Company.
(3) The Administrative Agent shall have received evidence of payment by the Borrower Company of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 6 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the BorrowerCompany, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the BorrowerCompany, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying (A) that there is no Default or Event of Default as of the Effective Date, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) a calculation of the Consolidated Leverage Ratio as of the end of the most recently ended fiscal quarter.
(6) The Administrative Agent shall have received all other documents it it, the L/C Issuer, the Swing Line Lender, or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(67) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 5(a), each Lender that has signed this Amendment shall be outstandingdeemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be is subject to the satisfaction provisions of each Section 14.11 of the following conditions precedent:
2004 Credit Agreement. This Amendment shall become effective as of the date first above written (1the "Amendment Effective Date") The when and only when, on or before the Amendment Effective Date, the Administrative Agent shall have received received:
(Aa) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) Counterparts of this Amendment and (B) from executed by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in Additional Obligors and the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Required Lenders.
(2b) The Administrative Agent shall have received evidence of payment by the Borrower of all feesA certificate from a Responsible Officer, costs in form and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for substance reasonably satisfactory to the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received that all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date Borrower contained in the 2004 Credit Agreement, as amended hereby, are true, correct and complete in all material respects with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); that the Borrower is not in violation of any of the covenants contained in the 2004 Credit Agreement is Agreement, as amended as set forth herein. Except as expressly amended pursuant heretohereby; that, after giving effect to the Credit Agreement shall remain unchanged and in full force and effect transactions contemplated by this Amendment, no Default or Event of Default has occurred and is hereby ratified continuing; and confirmed in all respectsthat each of the conditions to the effectiveness of this Amendment has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise).
(c) The A certificate of the secretary, assistant secretary or general counsel of the Borrower certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Amendment and certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the borrowings contemplated under the 2004 Credit Agreement, as amended hereby, and the execution, delivery and performance of this Amendment.
(d) Favorable opinions of Xxx X. Xxxxxx, General Counsel to the Borrower, Cravath, Swaine & Xxxxx LLP, special counsel to the Borrower, Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, Pennsylvania counsel to the Borrower, and Drinker Xxxxxx & Xxxxx LLP, New Jersey counsel to the Borrower, addressed to the Administrative Agent will notify and the Borrower of Lenders with respect to the occurrence of Borrower, the Effective DateLoan Documents and such other matters as the Lenders shall reasonably request.
Appears in 1 contract
Samples: Five Year Credit Agreement (Jones Apparel Group Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be is subject to the satisfaction of each of the following conditions precedentprecedent that the Administrative Agent shall have:
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a counterparts of this Amendment duly executed original by the Borrower, the Required Lenders (orand any other Lenders required by Section 11.1 of the Credit Agreement), if elected by and the Administrative Agent, and the Credit Documents Reaffirmation attached hereto as Exhibit A duly executed by the Credit Parties;
(b) received a fully executed and effective copy of the Security Agreement executed by the Credit Parties and the Administrative Agent;
(c) received from the Borrower for the benefit of each Lender that executes and delivers its signature page hereto to the Administrative Agent by facsimile or e-mail transmission (and with receipt thereof determined by the Administrative Agent in its sole discretion) no later than 4:00 p.m. Chicago time on August 12, 2010 (the “Consent Deadline”) and elects (by affirmatively making such election on its signature page hereto) to be treated as a Class A Revolving Lender by the Consent Deadline, an executed facsimile copy) amendment fee equal to 0.75% times such Lender’s Class A Revolving Commitment after giving effect to the terms of this Amendment and (Bwith no such fee being paid to any Class B Revolving Lender);
(d) received from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) payment and/or reimbursement of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to Administrative Agent’s fees as required by the Credit Agreement (but dated the Effective Date and also stating Agreement, as well as those fees payable pursuant to that it replaces and supersedes, without novation, the Revolving Credit Notes previously certain fee letter delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment between the Borrower and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, and to the extent invoiced on or prior to the Effective Date).date hereof, reasonable out-of-pocket expenses (including reasonable legal fees and expenses) in connection with this Amendment;
(3e) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
favorable written opinion (4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory addressed to the Administrative Agent, a copy of Agent and the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery Lenders and performance of dated the Amendment Documents.
(5No. 1 Closing Date) The Administrative Agent shall have received all of Xxxxx & Xxxxxxx LLP, counsel for the Credit Parties, covering such other documents it or the Lender may reasonably request matters relating to any matters relevant heretothe Credit Documents (including, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Datewithout limitation, the Credit Agreement is (as amended by this Amendment)) as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement Administrative Agent shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.reasonably request; and
(cf) The Administrative Agent will notify received those agreements, documents, instruments and other deliverables identified in the Borrower Amendment No. 1 List of the occurrence of the Effective Date.Closing Documents attached hereto as Exhibit B.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (Ai) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) counterparts of this Amendment and (B) from executed by the Borrower, the Administrative Agent and all consenting Lenders (including, at a duly minimum, those Lenders comprising Required Lenders) or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed original this Amendment, and (or an executed facsimile copy with an original to follow promptly thereafterii) of a replacement Revolving Credit Note the consent attached hereto (the “New NoteConsent”) substantially executed by each of the Guarantors.
(b) The representations and warranties set forth in each of the form Loan Documents shall be correct in all material respects on and as of Exhibit B-2 the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Credit Agreement (but dated the Amendment Effective Date and also stating that it replaces and supersedesDate, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)in which case as of such specific date).
(2c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) The Administrative Agent shall have received evidence payment in full of payment by the Borrower of all fees, costs and expenses due and payable as an amendment fee equal to 0.10% of the Effective Date under or in connection with sum of the Commitments of those Lenders that have executed and delivered to the Administrative Agent a signature page to this Amendment and the Credit AgreementAmendment, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel which fee shall be for the Administrative Agent, to the extent invoiced on or prior to the Effective Date)ratable benefit of such Lenders.
(3f) The Administrative Agent shall have received from copies, certified by the BorrowerBorrower as correct and complete, in form of the Note Agreement and substance satisfactory to itthe other Note Documents, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent which shall have received from the Borrower, be in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) . The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 effectiveness of this Amendment shall be true and correct on and as is conditioned upon the accuracy of the Effective Date with factual matters described herein. This Amendment is subject to the same effect as if made on and as provisions of Section 9.01 of the Effective DateCredit Agreement.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Digital Realty Trust, Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable become effective as of the Effective Date under or in connection with this Amendment date hereof when, and the Credit Agreementonly when, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent behalf of Lenders, shall have received from the Borrowerreceived, in form and substance satisfactory to it, a Compliance Certificate as the following:
(a) Counterparts of this Amendment duly executed by Borrower, each of the Guarantors and the Required Lenders;
(b) For the benefit of each Revolving Lender who executes this Amendment by 5:00 p.m. (CDT) on September 30, 2009 calculated 2011, the payment by Borrower of an amendment fee equal to 0.15% of the Commitment of each such Lender, in immediately available funds, such fee being fully earned and non-refundable when paid;
(c) Additional Raw Entitled Land having an aggregate Raw Entitled Land Value of not less than $68,180,270 and more particularly described on a pro forma basis after giving effect Schedule delivered to this AmendmentAgent shall have become Mortgaged Property, and the Mortgaged Property Documents for such Mortgaged Property shall have been delivered to Agent granting a first-priority lien on such Mortgaged Property, subject only to Permitted Liens. Borrower shall have paid to Agent any mortgage, recording, intangible, documentary stamp or other similar taxes and charges which Agent reasonably determines to be payable as a result of the recording of such Mortgaged Property documents to any state or any county or municipality thereof in which any of such Mortgaged Properties are located, and delivered to Agent such affidavits or other information which Agent reasonably determines to be necessary in connection with such payment in order to insure that the Security Deeds on such Mortgaged Property located in such state secures Borrower’s obligation with respect to the Loans.
(4d) The Administrative Agent shall have received from the Borrower, in form True and substance satisfactory to the Administrative Agent, a copy correct copies of resolutions of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing Borrower that authorize the execution, delivery and performance of this Amendment and the Amendment Documents.other documents executed in connection herewith;
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6e) The representations and warranties in made pursuant to Section 3 8 of this Amendment shall be true and correct on correct; and
(f) Payment of all reasonable and as of the Effective Date documented expenses incurred by Agent in connection with the same effect as if made on execution and as delivery of this Amendment, together with reasonable fees and actually incurred expenses of Agent’s counsel with respect to this Amendment and other post-closing matters, in each case to the Effective Dateextent invoiced at least one (1) Business Day prior to the date hereof.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Forestar Group Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment. Second Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”364-Day)).
(2) The Administrative Agent shall have received evidence the consent of payment by the Borrower a number of all fees, costs and expenses due and payable as Subsidiaries of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for Company satisfactory to the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, which are Guarantors, parties to a copy of Pledge Agreement or parties to the resolutions passed Interco Subordination Agreement, in their capacities as such, to the execution and delivery hereof by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment DocumentsCompany.
(53) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(64) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has executed this Amendment shall be outstandingdeemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company and each of the Lender Banks (i) a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Agreement; and (Bii) from the Borrowerif requested by any Bank, a duly executed original Note (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 I to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Original Agreement.
(2) The Administrative Agent shall have received evidence of payment by the Borrower Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Original Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment Agreement (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, Company a copy of the resolutions passed by the board of directors of the BorrowerCompany, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of this Agreement, the Amendment DocumentsNotes to be delivered hereunder and the Original Agreement (as amended and restated by this Agreement).
(4) The Agent shall have received an opinion of Thomas R. Saldin, Executive Vice-President and General Counsel to txx Xxxxxxx, xxxxx the Effective Date and addressed to the Agent and the Banks, in form and substance satisfactory to the Agent and the Banks.
(5) The Administrative Agent shall have received a favorable opinion of Brobeck, Phleger & Harrison LLP, special counsel to the Agent, datex xx xx the Effectixx Xxxx.
(6) The Agent shall have received all other documents it or the Lender any Bank may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative AgentAgent and each Bank.
(67) The representations and warranties in Section 3 of this Amendment Agreement shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Bank that has executed this Agreement shall be outstandingdeemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Agent to such Bank for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Bank.
(bc) From and after the Effective Date, the Credit Original Agreement is amended as set forth herein and is restated in its entirety to read as set forth in the Original Agreement with the amendments specified herein. Except as expressly amended pursuant hereto, and all outstanding Notes under the Credit Original Agreement shall remain unchanged be superseded and in full force replaced by the Notes delivered under this Agreement. All such previously outstanding Notes will be deemed cancelled upon the occurrence of the Effective Date. The Original Agreement (as amended and effect and restated by this Agreement) is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Banks of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be is subject to the satisfaction provisions of each Section 9.02 of the following conditions precedent:
Credit Agreement. This Amendment shall become effective on the date (1the “Amendment No. 2 Effective Date”) The Administrative when, and only when, the Agent shall have received (Ai) from counterparts of this Amendment executed by Holdings, the Borrower and the Lender a duly executed original (Required Lenders or, if elected as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each Guarantor and (iii) evidence that all of the Administrative Agentfollowing conditions shall have been satisfied:
(a) All accrued costs and expenses of the Agent in connection with the administration of the Credit Agreement and the preparation, an executed facsimile copy) execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder and under the Loan Documents (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedesincluding, without novationlimitation, the Revolving Credit Notes previously delivered reasonable fees and expenses of counsel for the Agent) shall have been paid by the Borrower under to the Credit Agreement (extent invoiced prior to the “Old Notes”))date hereof.
(2b) The Administrative amendment fee referred to in Section 4 hereof shall have been paid by the Borrower.
(c) The arrangement fee referred to in the fee letter dated the date hereof shall have been paid by Holdings and the Borrower.
(d) The Agent shall have received evidence of payment by the Borrower of all feesfollowing documents, costs and expenses due and payable as of each dated the Amendment No. 2 Effective Date under or in connection with this Amendment (unless otherwise specified) and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, :
(i) a copy certificate of the resolutions passed by the board of directors of the Borrower, certified each Loan Party dated as of the Amendment No. 2 Effective Date signed by the Secretary or an Assistant Secretary a responsible officer of such PersonLoan Party (or, authorizing the executionif such Loan Party is a limited liability company, delivery and performance a responsible officer of the sole member or sole manager thereof) (x) certifying as to incumbency and certifying and attaching the resolutions adopted by such Loan Party approving or consenting to this Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant heretoConsent, all in form as applicable, and substance satisfactory to (y) certifying that (1) the Administrative Agent.
(6) The representations and warranties contained in Section 3 of this Amendment shall be and the other Loan Documents are true and correct in all material respects on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Amendment No. 2 Effective Date, except to the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant heretoextent that such representations and warranties specifically refer to an earlier date, the Credit Agreement shall remain unchanged in which case they are true and in full force and effect and is hereby ratified and confirmed correct in all respects.material respects as of such earlier date, and (2) no Default exists; and
(cii) The Administrative Agent will notify legal opinions satisfactory to the Borrower of Agent, dated the occurrence of the Amendment No. 2 Effective Date, covering such matters related to this Amendment and the Consent as the Agent shall reasonably request.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent of a number of Subsidiaries of the Company satisfactory to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, which are Guarantors, parties to a Pledge Agreement or parties to the Interco Subordination Agreement, in their capacities as such, to the execution and delivery hereof by the Company.
(3) The Administrative Agent shall have received evidence of payment by the Borrower Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's and the Lead Arranger's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the BorrowerCompany, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the BorrowerCompany, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has executed this Amendment shall be outstandingdeemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.the
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and each of the Lender Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement or the Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Borrower.
(B3) The Administrative Agent shall have received from the BorrowerBorrower a certificate certifying the U.S. Subsidiaries and the Excluded U.S. Subsidiaries, which certification the Borrower may update at any time prior to March 31, 2003.
(4) The Administrative Agent shall have received from the Borrower and each of its U.S. Subsidiaries a duly executed original (or or, if elected by the Administrative Agent, an executed facsimile copy with an original to follow promptly thereaftercopy) of a replacement Revolving Credit Note (the “New Note”) Security Agreement, substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Annex 3.
(25) The Administrative Agent shall have executed the amendment to the Intercreditor Agreement, substantially in the form of Annex 4 and shall have received from Bank of America (in its capacities as Administrative Agent under the 364-Day Credit Agreement and as Collateral Agent) a duly executed original thereof.
(6) The Administrative Agent shall have received from the Borrower a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower in respect of the fiscal quarter of the Borrower ended November 30, 2002.
(7) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) 8) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy copies of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Personthe Borrower, authorizing the execution, delivery and performance of this Amendment, the Security Agreement and each other document, agreement or instrument to be executed and delivered by it pursuant thereto, together with such incumbency certificates and/or other certificates of Responsible Officers of the Borrower, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as such in connection with this Amendment Documentsand each other Loan Document to which the Borrower is a party.
(59) The Administrative Agent shall have received an opinion of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent, and addressed to the Administrative Agent and the Lenders, dated the Effective Date.
(10) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(611) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made shall have occurred on and as of the Effective Dateor before February 13, 2003.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable become effective as of the Effective Date under of this Agreement upon the satisfaction of all of the following conditions:
(i) Borrowers shall have delivered to Administrative Agent an original (or executed faxed or electronic copy) of this Agreement, duly executed by each of the Loan Parties;
(ii) the receipt by Administrative Agent of the payment, in immediately available funds, of the Modification Fee that is due and payable on the date hereof;
(iii) each of the representations and warranties contained in Section 6 of this Agreement shall be true, correct and accurate as of the date of this Agreement; and
(iv) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Amendment and Agreement or any of the Credit Agreementtransactions arising hereunder or otherwise related hereto or referred to herein, including any fees arising under actual out-of-pocket costs, expenses, charges or referenced in Section 5 expenses of this Amendment Administrative Agent and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations parties hereto specifically acknowledge and warranties in Section 3 agree that: (i) the execution and delivery of this Amendment Agreement shall not be true deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and correct on and as (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinother Loan Documents. Except as expressly amended pursuant hereto, the Credit Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and is are hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify , and the Borrower Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the occurrence Guarantors party hereto: (i) specifically consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to which it is a party; (iii) reaffirms the waivers of each and every one of the Effective Datedefenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of any other party under the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Live Oak Acquisition Corp)
Conditions of Effectiveness. 3.1 The amendments set forth in Article I, the extension of the Revolving Termination Date set forth in Article II and the limited consent set forth in Article VI shall become effective as of the date (athe “Effective Date”) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of when, and only when, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafterits counsel) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form the Guarantor and substance the Lenders holding more than fifty percent (50%) of the Total Revolving Commitments outstanding on the Effective Date either (i) a counterpart of this Second Amendment signed on behalf of such party or (ii) written evidence satisfactory to itthe Administrative Agent (which may include facsimile or other electronic image scan transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Second Amendment.
(b) The Borrower shall have paid:
(i) to the Administrative Agent, for the account of each Lender party hereto, a Compliance Certificate fee in the amount of 0.04% of such Lender’s Revolving Commitment as of September 30, 2009 calculated on a pro forma basis the Effective Date (after giving effect to this Second Amendment.), which fee once paid will be fully earned and nonrefundable; and
(4ii) The all other fees and reasonable expenses of the Administrative Agent shall have received from and the Borrower, in form Lenders required under the Credit Agreement and substance satisfactory any other Loan Document to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of be paid on or prior to the Effective Date by the Secretary or an Assistant Secretary (including reasonable fees and expenses of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5counsel) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of connection with this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsSecond Amendment.
(c) The Administrative Agent will notify the Borrower of the occurrence shall have received a certificate, dated as of the Effective DateDate and signed by an authorized officer of the Borrower, confirming (i) no Default or Event of Default shall have occurred and be continuing on the Effective Date and after giving effect thereto and (ii) the representations and warranties set forth in Article IV hereof, if not qualified as to materiality, shall be true and correct in all material respects and all other representations and warranties set forth in Article IV hereof shall be true and correct, in each case on and as of the Effective Date (or other such date expressly provided in Article IV hereof) with the same force and effect as if made on or as of the Effective Date (or other such date expressly provided in Article IV hereof).
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of not become effective until each of the following conditions precedenthas been satisfied:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected 3.1 Copies of resolutions adopted by the Administrative AgentBoard of Directors of the Company, certified by an executed facsimile copy) officer of this Amendment the Company as being true and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially correct and in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date full force and also stating that it replaces and supersedes, effect without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable amendment as of the Effective Date under or in connection with this Amendment and date hereof, authorizing the Credit Agreement, including any fees arising under or referenced in Section 5 of Company to enter into this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable feesother documents or agreements executed pursuant hereto, charges and disbursements of counsel for the Administrative Agent, shall have been delivered to the extent invoiced on or prior Bank.
3.2 This Amendment shall be executed and delivered by the Company and the Bank.
3.3 The Company shall have executed and delivered the Replacement Revolving Credit Note.
3.4 The Company shall have executed and delivered the Note Pledge Agreement (as defined above), together with the original Intercompany Note (as defined above), endorsed in blank to the Effective Date).
(3) The Administrative Agent Bank, and the Bank shall have received from satisfactory evidence of all collateral and other security for the BorrowerIntercompany Note and of the recordation, filing and other action (including payment of any applicable taxes or fees) in form such jurisdictions as the Bank may deem necessary or appropriate with respect to such collateral and substance satisfactory other security, including the filing of financing statements and similar documents which the Bank may deem necessary or appropriate to itcreate, a Compliance Certificate preserve or perfect the liens, security interests and other rights intended to be granted to the Company and assigned to the Bank thereunder, together with lien searches in such offices as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.the Bank may request
(4) 3.5 The Administrative Agent Bank shall have received from satisfactory evidence of the Borrowerrecordation, filing and other action (including payment of any applicable taxes or fees) in such jurisdictions as the Bank may deem necessary or appropriate with respect to the collateral and other security required under paragraph 8(aa) of the Letter Agreement, including the filing of financing statements and similar documents which the Bank may deem necessary or appropriate to create, preserve or perfect the liens, security interests and other rights intended to be granted to the Bank under the Security Documents, together with lien searches in such offices as the Bank may request
3.6 The Company shall have executed and delivered to the Bank a guaranty, in form and substance satisfactory to the Administrative AgentBank, a copy of all indebtedness of Hastings Inc. to the Bank (the "Company Guaranty").
3.8 The Company shall have caused to be delivered to the Bank the favorable written opinions of Xxxxxx Xxxxxxxx & Xxxx LLP, general counsel for the Company, and Lang Xxxxxxxx, counsel for Hastings Inc., with respect to such matters as the Bank may reasonably request.
3.9 The Company shall have delivered to the Bank copies of all governmental and nongovernmental consents, approvals, authorizations, declarations, registrations or filings, if any, required on the part of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary Company or an Assistant Secretary of such Person, authorizing Hastings Inc. in connection with the execution, delivery and performance of this Amendment, the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it Replacement Revolving Credit Note, the Security Documents or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory transactions contemplated hereby or as a condition to the Administrative Agent.
(6) The representations and warranties in Section 3 legality, validity or enforceability of this Amendment shall be Amendment, the Replacement Revolving Credit Note or any of the Security Documents, certified as true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and as of the Amendment Date by a duly authorized officer of the Company, or, if none is hereby ratified and confirmed in all respectsrequired, a certificate of such officer to that effect.
(c) 3.10 The Administrative Agent will notify Company shall have compensated the Borrower Bank, in accordance with the Bank's schedule of fees and costs as amended from time to time, for all collateral audits performed by the occurrence of Bank or its agents in connection with the Effective Datethis Amendment and the Bank's loan agreement with Hastings Inc., to the extent such fees and costs exceed $5,000.
3.11 The Bank shall have received such other documents and agreements and the Company shall have satisfied such other conditions and completed such other matters as the Bank may reasonably request.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received evidence the consent of payment by the Borrower a number of all fees, costs and expenses due and payable as Subsidiaries of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for Company satisfactory to the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, which are Guarantors, parties to a copy of Pledge Agreement or parties to the resolutions passed Interco Subordination Agreement, in their capacities as such, to the execution and delivery hereof by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment DocumentsCompany.
(53) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(64) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has executed this Amendment shall be outstandingdeemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. (a) The effectiveness This Amendment shall become effective as of the date first set forth above when and if the Agent shall have received from the Required Lenders and the Borrowers signed counterparts of this Amendment; and
(b) Section 2 of this Amendment shall be subject to become effective on the satisfaction of each of date (the following conditions precedent"Amendment Date") when and if the Agent shall have received:
(1i) The Administrative Agent shall have received a certificate of a Secretary or Assistant Secretary of each Borrower, dated the Amendment Date, certifying:
(A) from that attached thereto is a copy of the Borrower and certificate of incorporation, including all amendments thereto, of the Lender applicable Borrower, certified as of a duly executed original (or, if elected recent date by the Administrative AgentSecretary of State of the state of Texas or Delaware, as applicable, which has not been amended since the date of the last amendment thereto shown on an executed facsimile copy) attached certificate of this Amendment and good standing of the applicable Borrower as of a recent date from such Secretary of State;
(B) from that attached thereto is a true and complete copy of the Borrower, bylaws of the applicable Borrower as in effect on the Amendment Date and at all times since a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 date prior to the Credit Agreement date of the resolutions described in (but dated C)below;
(C) that attached thereto are true and complete copies of resolutions duly adopted by the Effective Date Board of Directors of the applicable Borrower authorizing the execution and also stating that it replaces and supersedes, without novationdelivery by the applicable Borrower of this Amendment, the Revolving Extensions of Credit Notes previously delivered by the Borrower to be made under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising as amended, and the performance by the applicable Borrower of all of its obligations under the Credit Agreement, as amended by this Amendment (the "Amended Credit Agreement"), and that such resolutions have not been modified, rescinded or referenced amended and are in Section 5 full force and effect; and
(D) as to the incumbency and specimen signature of each officer executing this Amendment and any costs other document delivered in connection herewith on behalf of the applicable Borrower; and
(E) that no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and expenses payable under Section 6(g) performance by the applicable Borrower of this Amendment or the Amended Credit Agreement;
(including F) the reasonable fees, charges representations and disbursements warranties of counsel for the Administrative Agent, to applicable Borrower set forth in Section 4 are true and correct on and as of the extent invoiced Amendment Date as though made on and as of such date; and
(G) no event has occurred and is continuing that constitutes a Default or prior to an Event of Default under the Effective Date)Amended Credit Agreement.
(3ii) The Administrative Agent shall have received from a certificate of another duly authorized officer of each Borrower as to the Borrower, in form incumbency and substance satisfactory specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.(i) above; and
(4iii) The Administrative Agent shall have received from favorable legal opinions of the Borrowerfollowing, in form and substance satisfactory to the Administrative Agent:
3 (A) Hunton & Williams LLP, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory counsel to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.Borrowers;
Appears in 1 contract
Samples: Credit Agreement (Txu Corp /Tx/)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable become effective as of the Effective Date under of this Agreement upon the satisfaction of all of the following conditions:
(i) Borrowers shall have delivered to Administrative Agent an original (or executed faxed or electronic copy) of this Agreement, duly executed by each of the Loan Parties;
(ii) the receipt by Administrative Agent of the payment, in immediately available funds, of the Sixth Modification Fee that is due and payable on the date hereof;
(iii) each of the representations and warranties contained in Section 6 of this Agreement shall be true, correct and accurate as of the date of this Agreement; and
(iv) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Amendment and Agreement or any of the Credit Agreementtransactions arising hereunder or otherwise related hereto or referred to herein, including any fees arising under actual out-of-pocket costs, expenses, charges or referenced in Section 5 expenses of this Amendment Administrative Agent and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations parties hereto specifically acknowledge and warranties in Section 3 agree that: (i) the execution and delivery of this Amendment Agreement shall not be true deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and correct on and as (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinother Loan Documents. Except as expressly amended pursuant hereto, the Credit Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and is are hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify , and the Borrower Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the occurrence Guarantors party hereto: (i) specifically consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to which it is a party; (iii) reaffirms the waivers of each and every one of the Effective Datedefenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of any other party under the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Live Oak Acquisition Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective on and as of the satisfaction of each date (such date, the “Amendment No. 3 Effective Date”) upon which all of the following conditions precedentset forth in this Section 4 shall have been satisfied:
(1a) The Receipt by Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of counterparts of this Amendment and (B) from the duly executed by Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date Lenders and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Administrative Agent.
(2b) The Administrative Agent shall have received evidence of payment by On the Borrower of all fees, costs and expenses due and payable as of the Amendment No. 3 Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
, (4i) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy each of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties contained in Section 3 4 of this Amendment shall be the Existing Credit Agreement are true and correct in all material respects on and as of the Amendment No. 3 Effective Date with (except for those representations and warranties that are conditioned by materiality, which are true and correct in all respects) to the same effect extent as if though made on and as of such date, except to the Effective Date.
extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (7) No Term Loans shall be outstanding.
(b) From except for those representations and after the Effective Datewarranties that are conditioned by materiality, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged which were true and in full force and effect and is hereby ratified and confirmed correct in all respects) on and as of such earlier date, (ii) no event shall have occurred and be continuing or would result from the consummation of this Amendment that would constitute an Event of Default under the Existing Credit Agreement.
(c) The Administrative Agent will notify (as defined in the Borrower Credit and Guaranty Agreement) shall have received from OpCo a one-time prepayment of the occurrence Term Loan (as defined in the Credit and Guaranty Agreement) under the Credit and Guaranty Agreement in an amount equal to $10,500,000, such prepayment to be applied in the same manner as set forth in Section 2.10(a) of the Effective DateCredit and Guaranty Agreement.
(d) Holdings, OpCo, Administrative Agent and Lenders party to the Credit and Guaranty Agreement will have executed and delivered an amendment to the Credit and Guaranty Agreement in form and substance reasonably satisfactory to Administrative Agent.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of date first above written (the “Effective Date”) when, and only when, each of the following conditions precedentshall have been satisfied:
(1a) The Administrative Agent shall have received (A) from counterparts of this Amendment executed by the Borrower and the Lender a duly executed original (Required Lenders or, if elected by as to any of the Administrative AgentLenders, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 advice satisfactory to the Credit Agreement (but dated the Effective Date and also stating Agent that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with such Lender has executed this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment consent attached hereto (the “Consent”) executed by each Guarantor and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date)Grantor.
(3b) The Administrative Agent shall have received from A certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.Borrower stating that:
(4i) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy each of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties contained in Section 3 Article V of this Amendment shall be the Credit Agreement and each other Loan Document is true and correct in all material respects on and as of the Effective Date with the same effect date hereof, as if made on and as of such date, except to the Effective Date.
(7) No Term Loans extent that such representations and warranties relate to a specific date, in which case such representations and warranties shall be outstanding.
(b) From true and after the Effective Datecorrect in all material respects as of such specific date; provided, however, that references in the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, to “this Agreement” and references in each other Loan Document to the “Credit Agreement” shall be deemed to refer to the Credit Agreement shall remain unchanged and in full force and effect as amended hereby; and
(ii) no event has occurred and is hereby ratified and confirmed in all respectscontinuing that constitutes a Default (other than the Specified Defaults).
(c) The Administrative Agent will notify Borrower shall have paid to the Borrower Agent, for the account of each Lender executing this Amendment within the time period required by the Agent, in accordance with its Pro Rata Share, a nonrefundable fee equal to 1.00% in respect of such Lender’s Pro Rata Share of the occurrence Maximum Availability as in effect on the date hereof.
(d) The Borrower shall have paid all accrued fees and expenses of the Effective Date.Agent and the Lenders (including all reasonable fees and out-of-pocket costs and expenses of legal counsel and advisors to the Agent) for which invoices in reasonable detail have been provided to Borrower
Appears in 1 contract
Samples: Credit Agreement (Geokinetics Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable become effective as of the Effective Date under of this Agreement upon the satisfaction of all of the following conditions:
(i) Borrowers shall have delivered to Administrative Agent an original (or executed faxed or electronic copy) of this Agreement, duly executed by each of the Loan Parties;
(ii) Borrowers shall have delivered to Administrative Agent a fully executed copy of the Merger Agreement and any amendments thereto;
(iii) each of the representations and warranties contained in Section 6 of this Agreement shall be true, correct and accurate as of the date of this Agreement; and
(iv) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Amendment and Agreement or any of the Credit Agreementtransactions arising hereunder or otherwise related hereto or referred to herein, including any fees arising under actual out-of-pocket costs, expenses, charges or referenced in Section 5 expenses of this Amendment Administrative Agent and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations parties hereto specifically acknowledge and warranties in Section 3 agree that: (i) the execution and delivery of this Amendment Agreement shall not be true deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and correct on and as (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinother Loan Documents. Except as expressly amended pursuant hereto, the Credit Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and is are hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify , and the Borrower Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the occurrence Guarantors party hereto: (i) specifically consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to which it is a party; (iii) reaffirms the waivers of each and every one of the Effective Datedefenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of any other party under the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Danimer Scientific, Inc.)
Conditions of Effectiveness. (a) The effectiveness Agreement shall become effective as of Section 2 of this the Amendment shall be subject to No. Three Effective Date upon the satisfaction of each all of the following conditions precedentconditions:
(1i) The Borrowers shall have delivered to Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed an original (or, if elected by the Administrative Agent, an or executed facsimile faxed or electronic copy) of this Amendment and (B) from the BorrowerAgreement, a duly executed by each of the Loan Parties;
(ii) Parent shall have delivered to Administrative Agent an original (or an executed facsimile copy with an original to follow promptly thereafterfaxed or electronic copy) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 Ratification attached to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedesthis Amendment, without novation, the Revolving Credit Notes previously delivered duly executed by the Borrower under the Credit Agreement (the “Old Notes”)).Parent;
(2iii) The Borrowers, Guarantors and Parent shall deliver to Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as an Officers’ Certificate of the Effective Date under or in connection with Parent, Meredian Holdings Group, Inc., a Delaware corporation, certifying as to (I) its articles of incorporation (attaching a certified articles from such state of a recent date), (II) its current bylaws (and attaching same), (III) resolutions approving this Amendment and the Credit Ratification, as applicable, and approving and ratifying all prior Amendments (as such term is defined in the Ratification), (IV) its officers authorized to execute this Amendment or the Ratification and specimen signatures of such officers, and (V) its good standing in its state incorporation (attaching a certified certificate from such state of a recent date) and confirming its good standing in each other state where it is required to be registered as a foreign corporation, except where the failure to be so qualified would not have a Material Adverse Effect;
(iv) each of the representations and warranties contained in Section 4 of this Agreement shall be true, correct and accurate as of the date of this Agreement; and
(v) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Agreement or any of the transactions arising hereunder or otherwise related hereto or referred to herein, including any fees arising under actual out-of-pocket costs, expenses, charges or referenced in Section 5 expenses of this Amendment Administrative Agent and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations parties hereto specifically acknowledge and warranties in Section 3 agree that: (i) the execution and delivery of this Amendment Agreement shall not be true deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and correct on and as (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinother Loan Documents. Except as expressly amended pursuant hereto, the Credit Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and is are hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify , and the Borrower Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the occurrence Guarantors party hereto: (i) specifically consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to which it is a party; (iii) reaffirms the waivers of each and every one of the Effective Datedefenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of any other party under the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Danimer Scientific, Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be Agreement on the Closing Date is subject to the satisfaction of each or waiver in accordance with Section 9.08 of the following conditions precedent:
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 written notification relating to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Type of Loans to be deemed made hereunder as required in Section 2.03.
(2b) The Administrative Agent representations and warranties set forth in Article III and in each other Loan Document shall have received evidence of payment be true and correct in all material respects (and in all respects with respect to representations and warranties qualified by the Borrower of all fees, costs materiality) on and expenses due and payable as of the Effective Date under or in connection date of such Loan with this Amendment the same effect as though made on and the Credit Agreementas of such date, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, except to the extent invoiced on or prior such representations and warranties expressly relate to the Effective Date)an earlier date, in which case they shall be true and correct in all material respects (and in all respects with respect to representations and warranties qualified by materiality) as of such earlier date.
(3c) The Administrative Agent At the time of and immediately after such Loan is deemed made, no Default or Event of Default shall have received from occurred and be continuing, and no “Default” or “Event of Default” shall have occurred and be continuing under (and as defined in) the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this AmendmentDIP Facility or the First Lien Facility.
(4d) The Administrative Agent This Agreement, the Guarantee Agreement, the Collateral Agreement, the Intercreditor Agreement and each of the other Loan Documents and other documentation relating to the Loans provided hereunder shall have received from the Borrower, be in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed Collateral Agent and the Lenders in their sole discretion, and counterparts hereof and thereof shall have been duly executed by the applicable Loan Parties and each other party thereto and delivered to the Administrative Agent and the Collateral Agent.
(e) The Administrative Agent shall have received an opinion or opinions, as applicable, of Dechert LLP, counsel for the Loan Parties, and any local counsel for the Loan Parties, in each case, (i) dated the Closing Date, (ii) addressed to the Administrative Agent, the Collateral Agent and the Lenders on the Closing Date, and (iii) covering customary matters relating to the Loan Documents and the Release Documents.
(f) The Administrative Agent shall have received a certificate of each Loan Party substantially in the form of Exhibit H, with appropriate insertions and attachments, including such Loan Party’s organizational or constitutional documents and resolutions (including, if applicable, shareholder resolutions) or board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, minutes authorizing the execution, delivery and performance of its obligations under the Amendment DocumentsLoan Documents and, in the case of the Borrower, the borrowings hereunder.
(5g) The Administrative Agent and the Lenders shall have received all Fees, and any other documents it amounts due and payable on or prior to the Lender may reasonably request relating Closing Date, including, to any matters relevant heretothe extent invoiced by 12:00 noon (New York City time) at least one (1) Business Day prior to the Closing Date, reimbursement or payment of all in form reasonable and substance satisfactory documented out-of-pocket fees and expenses (including the reasonable and documented fees and expenses of (A) Shearman & Sterling LLP and Xxxxxxxx, Xxxxxx & Finger PA, each as counsel to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.,
Appears in 1 contract
Samples: Second Lien Term Loan Agreement
Conditions of Effectiveness. (a) The effectiveness of Section 2 and Section 3 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement or the Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Borrower.
(3) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date date hereof hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 6 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Datedate hereof).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy copies of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date date hereof by the Secretary or an Assistant Secretary of such Personthe Borrower, authorizing the execution, delivery and performance of this Amendment, together with such incumbency certificates and/or other certificates of Responsible Officers of the Borrower, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as such in connection with this Amendment Documentsand each other Loan Document to which the Borrower is a party.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties Effective Date shall have occurred on or before August 31, 2003.
(b) For purposes of determining compliance with the conditions specified in Section 3 of 5(a), each Lender that has executed this Amendment shall be true and correct on and as of deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Effective Date with the same effect as if made on and as of the Effective DateAdministrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(7) No Term Loans shall be outstanding.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Company party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement and the Subsidiary Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Company.
(3) The Administrative Agent shall have received evidence of payment by the Borrower Company of all fees, costs and expenses due and payable as of the Effective Date date hereof hereunder and under or in connection with this Amendment and the Credit Agreement, including any the fees arising payable under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Datedate hereof).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the BorrowerCompany, in form and substance satisfactory to the Administrative Agent, a copy copies of the resolutions passed by the board of directors of the BorrowerCompany, certified as of the Effective Date date hereof by the Secretary or an Assistant Secretary of such Personthe Company, authorizing the execution, delivery and performance of this Amendment, together with such incumbency certificates and/or other certificates of Responsible Officers of the Company, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as such in connection with this Amendment Documentsand each other Loan Document to which the Company is a party.
(5) The Administrative Agent shall have received a certificate of a Responsible Officer of the Company, in form and substance satisfactory to the Administrative Agent, certifying financial projections for the Company and its Subsidiaries on a consolidated basis for the remainder of the year 2005 (including with respect to the fiscal quarter of the Company ended May 29, 2005) and for the years 2006 and 2007, and the Required Lenders shall be satisfied therewith.
(6) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations and warranties For purposes of determining compliance with the conditions specified in Section 3 of 4(a), each Lender that has executed this Amendment shall be true and correct on and as of deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Effective Date with the same effect as if made on and as of the Effective DateAdministrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(7) No Term Loans shall be outstanding.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence satisfaction of the Effective Dateconditions precedent in this Section 4.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be Agreement is subject to the satisfaction of each of the following conditions precedent:precedent (the first date on which such condition precedents have been satisfied or waived being the “Effective Date”):
(1a) The Administrative Agent shall have received each of the following:
(Ai) from the Borrower and the Lender a counterparts of this Agreement, duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment each Credit Party and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).each Lender;
(2ii) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g(x) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board certificate of directors formation of the Borrower, certified as of the Effective Date by the Secretary of State of Delaware as of a recent date, (y) a copy of the limited liability company agreement of the Borrower (or an Assistant Secretary a certification that there have been no changes to the limited liability company agreement of such Person, the Borrower previously delivered to the Administrative Agent) and (z) resolutions of the sole member of the Borrower authorizing the execution, delivery and performance of this Agreement, in each case, certified by a corporate secretary or assistant secretary of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant heretoBorrower and in form, all in form scope and substance satisfactory acceptable to the Administrative Agent.;
(6iii) The representations a written opinion of Borrower’s counsel, in form, scope and warranties substance acceptable to the Administrative Agent;
(iv) payment in Section 3 full, in immediately available funds, to the Administrative Agent of an amendment fee for the account of each Lender that executes and delivers a counterpart to this Amendment shall be true and correct Agreement on and as or prior to April 3, 2013, in an amount equal to 0.10% of the Effective Date with the same effect as if made on sum of (x) such Lender’s Revolving Commitment and (y) outstanding principal balance of Term Loans (excluding any Incremental Term Loans) owing to such Lender as of the Effective Date., which fee the Borrower hereby agrees to pay concurrently with its execution and delivery of this Agreement and agrees and acknowledges that such fee is fully-earned and non-refundable;
(7v) No payment of all fees due and payable to the Administrative Agent under any Loan Document and under that certain fee letter duly executed and delivered by the Borrower on or prior to the date hereof in favor of the Administrative Agent and GE Capital Markets, Inc.;
(vi) a copy of an Incremental Term Loan Assumption Agreement from each Incremental Term Loan Lender making Incremental Term Loans shall be outstanding.
(b) From and after on the Effective Date, duly executed by such Incremental Term Loan Lender and the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.Borrower; and
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of each become effective as of the following conditions precedent:
(1) The Administrative date set forth above when, and only when, the Agent shall have received (Ain sufficient copies for each Bank) from the Borrower and the Lender a duly executed original following:
(or, if elected by the Administrative Agent, an executed facsimile copya) Counterparts of this Amendment and (B) from executed by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date Guarantor and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstandingBanks.
(b) From Certified copies of the resolutions of the Board of Directors of the Borrower authorizing this Amendment and after of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Effective Date, Secretary or Assistant Secretary of the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsBorrower.
(c) The Administrative Agent will notify the Borrower Certified copies of the occurrence resolutions of the Effective Board of Directors of the Guarantor authorizing this Amendment and of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Secretary or Assistant Secretary of the Guarantor.
(d) A favorable opinion of counsel to the Borrower, to the effect set forth in Annex I to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(e) A favorable opinion of the General Counsel or Associate General Counsel of the Guarantor, to the effect set forth in Annex II to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(f) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Existing Agreement.
(g) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Multi-Year Credit Agreement, dated as of September 1, 1993, as amended, among the Borrower, the Guarantor, the banks party thereto and the Agent.
(h) Evidence that the "Expiration Date" of the Heat Purchase Contract has been extended to August 23, 2001.
(i) Such other instruments, opinions or documents as any Bank through the Agent may reasonably request.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment This Agreement shall be subject to the become effective upon satisfaction of each of the following conditions precedent:
(1i) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
Lender four (4) The Administrative copies of this Agreement duly executed by each Borrower;
(ii) Agent shall have received from the Borrower, in form and substance satisfactory to Agent an executed Purchase Agreement and all exhibits and schedules thereto and all other documents and agreements executed in connection therewith;
(iii) BATS and/or CTB shall have obtained all necessary consents with respect to each contract, lease, and agreement being assigned to CTB pursuant to the Administrative Purchase Agreement. BATS and CTB hereby covenant that no conditions to effectiveness of the Purchase Agreement shall be waived by BATS or CTB without Agent's prior written consent;
(iv) Agent shall have received an executed Amended and Restated Term Note in the form attached hereto as Exhibit A and (b) Amended and Restated Revolving Credit Note in the form attached hereto as Exhibit B;
(v) Agent shall have received in form and substance satisfactory to Agent a Collateral Assignment executed by BATS with respect to its rights under the Purchase Agreement;
(vi) Each document (including, without limitation, any Uniform Commercial Code financing statement) required by this Agreement or under law or reasonably requested by Agent to be filed, registered or recorded in order to create, in favor of Agent for the ratable benefit of the Lenders, a perfected security interest in or lien upon the Collateral owned by CTB 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;
(vii) Agent shall have received a copy of the resolutions passed by the board of directors in form and substance reasonably satisfactory to Agent, of the BorrowerBoard of Directors of (x) CTB authorizing (1) the execution, delivery and performance of this Agreement and (2) the granting by CTB of the Liens upon the Collateral, certified as of the Effective Date by the Secretary or an Assistant Secretary of such PersonCTB as of the date of this Agreement; and (y) of BATS, TEI, AFA, SEC, WSBS, BN and BAC authorizing (1) the execution, delivery and performance of this Agreement and (2) the Amendment Documents.addition of CTB as a "Borrower" under the Loan Agreement; and, such certificates shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(5viii) The Administrative Agent shall have received a copy of the Articles or Certificate of Incorporation of CTB, and all amendments thereto, certified by the Secretary of State or other documents it appropriate official of its jurisdiction of incorporation together with copies of the By-Laws of CTB certified as accurate and complete by the Secretary or an Assistant Secretary of CTB;
(ix) Agent shall have received good standing certificates for CTB dated not more than thirty (30) days prior to the date of this Agreement, issued by the Secretary of State or other appropriate official of CTB's jurisdiction of incorporation and each jurisdiction where the conduct of CTB's business activities or the Lender may reasonably request relating to any matters relevant heretoownership of its properties necessitates qualification;
(x) Agent shall have received the executed legal opinions of Xxxxx, all Fensterstock, Silverstein, XxXxxxxxx & Xxxx, LLC in form and substance satisfactory to Agent regarding the Administrative Agent.due authorization, enforceability and validity of (i) this Agreement and (ii) the Purchase Agreement, and the transactions contemplated herein and therein;
(6xi) The Agent shall have received in form and substance satisfactory to Agent, certified copies of CTB's casualty insurance policies, together with loss payable endorsements on Lender's standard form of loss payee endorsement naming Agent as loss payee, and certified copies of CTB's liability insurance policies, together with endorsements naming Agent as a co-insured;
(xii) Agent shall have received in form and substance satisfactory to Agent all landlord, mortgagee or warehousemen agreements for CTB's existing premises at 00000 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx and future premises at 000 Xxxxxxx Xxxxxx, Oldsmar, Florida;
(xiii) Agent shall have received the stock certificate issued by CTB in favor of BATS, along with an executive stock power which shall be pledged to Agent under and pursuant to the Pledge Agreement dated January 7, 1997 by and between Agent and BATS;
(A) No litigation, investigation or proceeding before or by any arbitrator or Governmental Body shall be continuing or threatened against any Borrower or against the officers or directors of any Borrower (x) in connection with this Agreement or any of the Transactions contemplated by the CTB Acquisition Agreement and which, in the reasonable opinion of Agent, is deemed material or (y) which if adversely determined, would, in the reasonable opinion of Agent, have a Material Adverse Effect on Borrowers taken as a whole; and (B) no injunction, writ, restraining order or other order of any nature materially adverse to any Borrower, or the conduct of the business of any Borrower, or inconsistent with the due consummation of this Agreement or the CTB Acquisition Agreement shall have been issued by any Governmental Body;
(xv) Agent shall have received an executed Financial Condition Certificate satisfactory in form and substance to it, certifying the solvency of Borrowers on a consolidated basis after giving effect to the transactions contemplated by this Agreement and the CTB Acquisition Agreement and as to Borrowers' financial resources and their ability to meet their obligations and liabilities as they become due;
(xvi) Agent shall have completed Collateral examinations, the results of which shall be satisfactory in form and substance to Agent, of the Receivables, Inventory and General Intangibles of CTB and all books and records in connection therewith;
(xvii) Agent shall have received a copy of the Amendment No. 1 Projections which shall be satisfactory in all respects to Agent;
(xviii) Agent shall have received duly executed agreement(s) establishing the Blocked Account(s) with financial institutions reasonably acceptable to Agent for the collection or servicing of the Receivables and proceeds of the Collateral of CTB;
(xix) Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;
(A) Since January 7, 1997 there shall not have occurred (x) any material adverse change in the financial condition, operations, properties or prospects of Borrowers taken as a whole and Old Cliffco, (y) any material damage or destruction to any of the Collateral nor any material depreciation in the value thereof and (z) any event, condition or state of facts which would reasonably be expected to have a Material Adverse Effect on Borrowers taken as a whole and Old Cliffco and (B) no representations made or information supplied to Agent shall have been proven to be inaccurate or misleading in any material respect;
(xxi) Agent shall have received a closing certificate signed by the Chief Financial Officer of each Borrower dated as of the date hereof, stating that (A) all representations and warranties set forth in Section 3 of this Amendment shall be the Loan Agreement and the Other Documents are true and correct in all material respects on and as of such date, (B) Borrowers are on such date in compliance with all the Effective Date with terms and provisions set forth in the same effect as if made Loan Agreement and the Other Documents and (C) on and as such date no Default or Event of Default has occurred or is continuing;
(xxii) Agent shall have received a duly executed collateral assignment of the Effective Date.rights of each of BATS and CTB under the CTB Acquisition Agreement, in form and substance satisfactory to Lender;
(7xxiii) No Term Loans Agent shall have reviewed all material contracts of CTB including, without limitation, leases, union contracts, labor contracts, vendor supply contracts, license agreements and distributorship agreements and such contracts and agreements shall be outstanding.satisfactory in all respects to Agent; and
(bxxiv) From Agent shall have received such other certificates, instruments, documents and after the Effective Dateagreements as may reasonably be required by Agent or its counsel, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement each of which shall remain unchanged be in form and in full force substance satisfactory to Agent and effect and is hereby ratified and confirmed in all respectsits counsel.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Amendment No. 1 and Joinder Agreement (Batteries Batteries Inc)
Conditions of Effectiveness. This Agreement shall become effective on the 2021 Increased Amount Date upon the satisfaction of the conditions precedent set forth in this Section 4:
(a) The effectiveness of Section 2 Administrative Agent (or its counsel) shall have received from each Borrower and from each other party hereto (including the Administrative Agent, each 2021 Incremental Term Loan Lender, each Revolving Lender, each 2016 Incremental Term Loan Lender and such other Lenders and Voting Participants constituting the Required Lenders) an executed signature page counterpart of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:Agreement.
(1b) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements written opinions of counsel for the Administrative AgentBorrowers (including any local counsel, if applicable), dated the date hereof and as to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance matters reasonably satisfactory to the Administrative Agent, a copy of Agent and the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsLenders.
(c) The Administrative Agent will notify shall have received each of the following documents, each of which, shall be reasonably satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in form and substance, such documents and certificates as the Administrative Agent or its counsel may reasonably request, certified as of the 2021 Increased Amount Date as complete and correct copies thereof by the Secretary or an CHAR1\1795764v6 Assistant Secretary of each Borrower relating to (A) the organization, existence and good standing of such Borrower, (B) the authorization of the execution, delivery and performance by such Borrower of this Agreement and, in the occurrence case of RLP, the incurrence of the Effective 2021 Incremental Term Loan Facility, (C) certificates as to the incumbency and signature of each individual signing this Agreement and/or any other Loan Document or other agreement or document contemplated hereby and delivered in connection herewith on behalf of the applicable Borrower, and (D) the absence of any pending proceeding for the dissolution or liquidation of such Borrower or threatening the existence of such Borrower.
(d) The Administrative Agent shall have received an officer’s certificate from a Responsible Officer of each Borrower certifying that (i) after giving effect to the 2021 Incremental Term Loan Facility on a pro forma basis, Rayonier shall have a Leverage Ratio not greater than 52.5%, (ii) before and after giving effect to the 2021 Incremental Term Loan Facility, 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 2021 Increased Amount Date, or if such representation speaks of an earlier date, as of such earlier date, (iii) no default or event of default under the Credit Agreement shall have occurred and be continuing or would result from the effectiveness of the 2021 Incremental Term Loan Facility and (iv) after giving effect to the 2021 Incremental Term Loan Facility on a pro forma basis, Rayonier shall be in compliance with the covenants set forth in Section 5.04 of the Credit Agreement (calculated on a pro forma basis, as of the 2021 Increased Amount Date, but based upon the financial statements delivered pursuant to Section 5.01(k) of the Credit Agreement for the Fiscal Quarter ended March 31, 2021).
(e) The Administrative Agent shall have received a duly executed copy of a guarantee agreement with respect to the 2021 Incremental Term Loan Facility in the form attached hereto as Exhibit B.
(f) Each 2021 Incremental Term Loan Lender requesting a 2021 Incremental Term Loan Note shall have received a copy of such 2021 Incremental Term Loan Note duly executed by RLP.
(g) Receipt by the Administrative Agent of evidence that RLP has made a minimum equity investment of $1,000 in CoBank.
(h) The Administrative Agent shall have received, at least two (2) Business Days prior to the 2021 Increased Amount Date, (i) all documentation and other information required by authorities under applicable “Know Your Customer” and Anti-Terrorism and Anti-Corruption Laws and regulations, including, without limitation, the USA PATRIOT Act and (ii) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case, to the extent requested in writing by the Administrative Agent at least three (3) Business Days prior to the 2021 Increased Amount Date.
(i) The Administrative Agent shall have received the fees to be received on the 2021 Increased Amount Date separately agreed to between the Administrative Agent and Rayonier and shall have received, to the extent invoiced in reasonable detail at least one (1) Business Day prior to the 2021 Increased Amount Date, reimbursement or payment of all reasonable out of pocket expenses (including reasonable fees, charges and disbursements of CHAR1\1795764v6 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. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective on and as of the satisfaction of each date (such date, the “Amendment No. 2 Effective Date”) upon which all of the following conditions precedentset forth in this Section 5 shall have been satisfied:
(1a) The Receipt by Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of counterparts of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving by each Credit Note (Party, Lenders constituting the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date Required Lenders and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Administrative Agent.
(2b) The Administrative Agent shall have received evidence of payment by On the Borrower of all fees, costs and expenses due and payable as of the Amendment No. 2 Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
, (4i) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy each of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties contained in Section 3 4 of this Amendment shall be the Existing Credit Agreement are true and correct in all material respects on and as of the Amendment No. 2 Effective Date with (except for those representations and warranties that are conditioned by materiality, which are true and correct in all respects) to the same effect extent as if though made on and as of such date, except to the Effective Date.
extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (7) No Term Loans shall be outstanding.
(b) From except for those representations and after the Effective Datewarranties that are conditioned by materiality, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged which were true and in full force and effect and is hereby ratified and confirmed correct in all respects) on and as of such earlier date, (ii) no event shall have occurred and be continuing or would result from the consummation of this Amendment or the Amendment No. 2 Equity Issuance that would constitute an Event of Default under the Existing Credit Agreement.
(c) The Prior to or simultaneously with the effectiveness of this Amendment, the Amendment No. 2 Equity Issuance shall be consummated.
(d) Parent, Administrative Agent and Lenders (as defined therein) party to the Parent Convertible Notes Credit Agreement will notify have executed and delivered an amendment to the Borrower of the occurrence of the Effective DateParent Convertible Notes Credit Agreement in form and substance reasonably satisfactory to Administrative Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Waitr Holdings Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower Company and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Amendment.
(2) The Administrative Agent shall have received the consent of a number of Subsidiaries of the Company satisfactory to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, which are Guarantors, parties to a Pledge Agreement or parties to the Interco Subordination Agreement, in their capacities as such, to the execution and delivery hereof by the Company.
(3) The Administrative Agent shall have received evidence of payment by the Borrower Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's and the Lead Arranger's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the BorrowerCompany, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the BorrowerCompany, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7b) No Term Loans For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has executed this Amendment shall be outstandingdeemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(bc) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(cd) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Amendment Agreement (Solectron Corp)
Conditions of Effectiveness. (a) The effectiveness Upon satisfaction of Section 2 the following, the effective date of this Amendment shall be subject to December 2, 2002 (the satisfaction of each "EFFECTIVE DATE"). This Amendment shall become effective when, and only when:
(a) the Noteholder shall have received all of the following conditions precedent:
documents, each (1unless otherwise indicated) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but being dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowerdate hereof, in form and substance satisfactory to the Administrative AgentNoteholder:
(i) executed originals of each of this Amendment and the Consent of Guarantors, attached hereto;
(ii) a copy duly executed Credit Agreement Amendment (as hereinafter defined) in form and substance acceptable to the Noteholder under which all conditions have been satisfied and that is in full force and effect;
(iii) an executed allonge to the Note in the form of Exhibit A hereto, and otherwise acceptable to the Noteholder;
(iv) a duly executed letter from General Electric Capital Corporation, in form and substance acceptable to the Noteholder, confirming that the conditions set forth in the securitization agreement with the Company have been satisfied;
(v) certified copies of the resolutions passed by the board of directors of the Borrower, certified as Board of Directors of the Effective Date by Company authorizing this Amendment and the transactions contemplated thereby;
(vi) a certificate of the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery Company certifying the names and performance true signatures of the officers authorized to sign this Amendment Documents.on behalf of the Company and any other documents to be delivered by the Company hereunder;
(5vii) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating opinions of counsel to any matters relevant hereto, all the Company and the Guarantors containing such opinions and in form and substance satisfactory acceptable to the Administrative AgentNoteholder and its counsel; and
(viii) such other documents, instruments, approvals or opinions as the Noteholder may reasonably request.
(6b) The the Company shall have paid to the Noteholder an amendment fee equal to 0.25% of the outstanding principal amount of the Notes.
(c) the Company shall have paid all costs and expenses (including legal fees) incurred by the Noteholder.
(d) the representations and warranties in Section 3 of this Amendment contained herein shall be true and correct on and as of the Effective Date with date hereof, and there shall exist on the same effect date hereof no Event of Default or Default; except as if made on and as disclosed in writing to the Noteholder, there shall exist no material adverse change in the financial condition, business operation or prospects of the Effective DateCompany or its Subsidiaries since December 30, 2001; and the Company shall have delivered to the Noteholder an Officer's Certificate to such effect.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Note Agreement (Cone Mills Corp)
Conditions of Effectiveness. This Amendment shall become effective in the order and in the manner herein described, as of the first date upon which each of the conditions precedent set forth below in this Section 5 shall be satisfied or waived in accordance with Section 9.08 of the Unamended Credit Agreement (such date, the “Amendment Effective Date”):
(a) The effectiveness representations and warranties set forth in the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects as of Section 2 the Amendment Effective Date, with the same effect as though made on and as of such date; provided to the extent such representations and warranties expressly relate to an earlier 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 “materiality,” “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(b) 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 or an Event of Default under the Unamended Credit Agreement, the Amended Credit Agreement and the other Loan Documents
(c) The execution, delivery of, and the performance of this Amendment by Holdings, the Company and the other Borrowers is permitted under the terms of all Material Indebtedness.
(d) The Administrative Agent (or its counsel) shall be subject 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 counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the satisfaction Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Agreement.
(e) The Administrative Agent shall have received, 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, (iii) VanCott, Bagley, Cornwall & XxXxxxxx, Utah counsel for certain of the Loan Parties, (iv) Xxxxxxxx, Xxxxxx & Finger, Delaware counsel for certain of the Loan Parties, (v) Faegre Xxxxx Xxxxxxx, LLP, Minnesota counsel for certain of the Loan Parties, (vi) Xxxx Xxxx & Xxxxxxx, New Jersey counsel for certain of the Loan Parties, (vii) Xxxxxxx & Xxxx, Wisconsin counsel for certain of the Loan Parties, and (viii) Xxxxxxx LLP, Maryland counsel for certain of the Loan Parties, in each case (A) dated the Amendment Effective Date, (B) addressed to each Issuing Bank on the Amendment Effective Date, the 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) Except as provided in Section 6(b) hereof, the Administrative Agent shall have received in the case of each Loan Party each of the following conditions precedentitems 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 latter of (x) its last date of its previous delivery to the Administrative Agent pursuant to the Unamended Credit Agreement, and (y) the Original Agreement 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 (and if available, accompanied by a “bring down” dated as of the Amendment Effective Date) from such Secretary of State (or other similar official) 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 Original Agreement 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, the Lenders and any Issuing Bank 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, the Amended Credit Agreement and the other 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 all fees payable thereto or to any Lender on or prior to the Amendment Effective Date and, to the extent invoiced at least 2 Business Days prior to the Amendment Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket 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 hereunder or under any Loan Document.
(i) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected standard flood hazard determination form ordered by the Administrative AgentCollateral Agent evidencing whether each such Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”) and whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program, an executed facsimile copy) of this Amendment and (B) for each Flood Hazard Property, the applicable Loan Party’s written acknowledgment of receipt of written notification from the Borrower, Collateral Agent as to the fact that such Mortgaged Property is a duly executed original (or an executed facsimile copy with an original Flood Hazard Property and as to follow promptly thereafter) of a replacement Revolving Credit Note (whether the “New Note”) substantially community in which each such Flood Hazard Property is located is participating in the form National Flood Insurance Program, and (C) for each Flood Hazard Property, copies of Exhibit B-2 the applicable Loan Party’s flood insurance in an amount and otherwise sufficient to comply with all rules and regulations promulgated pursuant to the Credit Agreement (but dated the Effective Date Flood Insurance Laws and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, otherwise in form and substance reasonably acceptable to the Lenders (such acceptability being conclusively evidenced by the execution of this Amendment by each Lender). For purposes of determining compliance with the conditions specified above, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to it, a Compliance Certificate as the Lenders unless an officer of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrower, in form Amendment Effective Date specifying its objection thereto and substance satisfactory such Lender shall not have made available to the Administrative Agent, a copy Agent such Lender’s ratable portion of the resolutions passed by the board of directors of the Borrowerinitial Borrowing, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documentsif any.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Plastics Group Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be is subject to the satisfaction provisions of each Section 14.11 of the following conditions precedent:
2005 Credit Agreement. This Amendment shall become effective as of the date first above written (1the "Amendment Effective Date") The when and only when, on or before the Amendment Effective Date, the Administrative Agent shall have received received:
(Aa) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) Counterparts of this Amendment and (B) from executed by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in Additional Obligors and the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Required Lenders.
(2b) The Administrative Agent shall have received evidence of payment by the Borrower of all feesA certificate from a Responsible Officer, costs in form and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for substance reasonably satisfactory to the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received that all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date Borrower contained in the 2005 Credit Agreement, as amended hereby, are true, correct and complete in all material respects with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); that the Borrower is not in violation of any of the covenants contained in the 2005 Credit Agreement is Agreement, as amended as set forth herein. Except as expressly amended pursuant heretohereby; that, after giving effect to the Credit Agreement shall remain unchanged and in full force and effect transactions contemplated by this Amendment, no Default or Event of Default has occurred and is hereby ratified continuing; and confirmed in all respectsthat each of the conditions to the effectiveness of this Amendment has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise).
(c) The A certificate of the secretary, assistant secretary or general counsel of the Borrower certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Amendment and certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the borrowings contemplated under the 2005 Credit Agreement, as amended hereby, and the execution, delivery and performance of this Amendment.
(d) Favorable opinions of Xxx X. Xxxxxx, General Counsel to the Borrower, Cravath, Swaine & Xxxxx LLP, special counsel to the Borrower, Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, Pennsylvania counsel to the Borrower, and Drinker Xxxxxx & Xxxxx LLP, New Jersey counsel to the Borrower, addressed to the Administrative Agent will notify and the Borrower of Lenders with respect to the occurrence of Borrower, the Effective DateLoan Documents and such other matters as the Lenders shall reasonably request.
Appears in 1 contract
Samples: Five Year Credit Agreement (Jones Apparel Group Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of Administrative Agent, the Issuing Bank and the Banks have relied upon the representations and warranties in this Amendment shall be in agreeing to the amendments to the Agreement set forth herein and the amendments to the Agreement set forth herein are conditioned upon and subject to the satisfaction accuracy of each and every representation and warranty of each of the following conditions precedent:Borrowers and the Parent made or referred to herein, and performance by each of the Borrowers and the Parent of its obligations to be performed under the Agreement on or before the date of this Amendment (except to the extent amended herein).
(1b) The amendments to the Agreement set forth herein are further conditioned upon receipt by the Administrative Agent shall have received (A) from of certificates of the Borrower Secretary or Assistant Secretary of each of the Borrowers and the Lender Parent certifying those certain resolutions of each respective Board of Directors delivered to the Banks as of July 19, 1999 in connection with the Credit Agreement have not been amended, rescinded or revoked and are in full force and effect as of the date hereof.
(c) The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having paid to each of the Banks that have approved the terms of this Amendment an amendment fee equal to the product of twenty-five basis points multiplied by such Bank=s Commitment.
(d) The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having paid all accrued and unpaid legal fees and expenses referred to in SECTION 16 of the Agreement and SECTION 7 hereof.
(e) The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having delivered to the Administrative Agent an original executed copy of that certain Consent to Assignment of Charter dated as of July 19, 1999 by and among Trico Marine Assets, Inc. and Trico Marine Operators, Inc.
(f) The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having delivered to the Administrative Agent a duly executed original (or, if elected by favorable opinion addressed to the Banks and the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowereven date hereof, in form and substance satisfactory to the Banks and the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrowerfrom: Jones, certified as of the Effective Date by the Secretary or an Assistant Secretary of such PersonWalker, authorizing the executionWaechter, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant heretoPoitevent, all in form and substance satisfactory Carrere & Xxxxxxx, L.L.P., counsel to the Administrative AgentBorrowers and the Parent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Trico Marine Services Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment Agreement shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received from each Loan Party and each of the Lenders (Ai) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Agreement; and (Bii) from the Borrowerif requested by any Lender, a duly executed original Notes (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”Notes) substantially in the form forms of Exhibit B-2 F-1 and Exhibit F-1 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Agreement.
(2) The Administrative Agent shall have received the consent of each Guarantor in its capacity as such to the execution and delivery hereof by the Company.
(3) The Agent shall have received evidence of payment by the Borrower Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment Agreement and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(34) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, Company a copy of the resolutions passed by the board of directors of the BorrowerCompany, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of this Agreement, the Amendment DocumentsNotes to be delivered hereunder and the Credit Agreement (as amended and restated by this Agreement).
(5) The Administrative Agent shall have received an opinion of Gibsxx Xxxn & Xrutxxxx, xxecial counsel to the Company, addressed to the Agent and the Lenders, dated the Effective Date, substantially in the form of Exhibit A hereto.
(6) The Agent shall have received all other documents it or the any Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative AgentAgent and each Lender.
(67) The representations and warranties in Section 3 of this Amendment Agreement shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
. For purposes of determining compliance with the conditions specified in this Section 4(a), each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter (including any and all items referenced in subsections 4(a)(1) and (2) and 4(a)(4) through (7)) No Term Loans shall either sent, or made available for inspection, by the Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be outstandingconsented to or approved by or acceptable or satisfactory to such Lender.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except herein and is restated in its entirety to read as expressly amended pursuant hereto, set forth in the Credit Agreement with the amendments specified herein and all outstanding Notes under the Credit Agreement shall remain unchanged be superseded and in full force replaced by the Notes delivered under this Agreement. All such previously outstanding Notes will be deemed cancelled upon the occurrence of the Effective Date. The Credit Agreement (as amended and effect and restated by this Agreement) is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower Company and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) : The Administrative Agent shall have received (A) from the Borrower and the Lender Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Amendment. The Administrative Agent shall have received the consent of each party to a Guaranty, in form and (B) from substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) . The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date date hereof hereunder and under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent's costs, expenses and attorneys' fees, to the extent invoiced on or prior to the Effective Datedate hereof).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) . The Administrative Agent shall have received all other documents it or the Lender Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties . For purposes of determining compliance with the conditions specified in Section 3 of 4(a), each Lender that has executed this Amendment shall be true and correct on and as of deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender, unless, prior to the Effective Date with Amendment Date, the same effect as if made on and as of the Effective Date.
(7) No Term Loans Administrative Agent shall be outstanding.
(b) have received notice from such Lender specifying its objection thereto. From and after the Effective Amendment Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) . The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Amendment Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of each become effective as of the following conditions precedent:
(1) The Administrative date first above written when, and only when, the Agent shall have received (A) from counterparts of this Amendment executed by the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original Required Lenders (or an as to any of the Lender Parties, advice satisfactory to the Agent that such Lender party has executed facsimile copy with an original to follow promptly thereafterthis Amendment) and counterparts of a replacement Revolving Credit Note the consent attached hereto (the “New Note”"Consent") substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date executed by each Guarantor Subsidiary. Section 1 hereof shall become effective when, and also stating that it replaces and supersedes, without novationonly when, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have additionally received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowerfollowing documents, in form and substance satisfactory to the Administrative Agent, a copy Agent and insufficient copies for each Lender party:
(a) Certified copies of (i) the resolutions of the resolutions passed by Board of Directors of (A) the board of directors Borrower approving this Amendment and the matters contemplated hereby and (B) each Guarantor Subsidiary evidencing approval of the BorrowerConsent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, certified as if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(b) A certificate of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery Borrower and performance each Guarantor Subsidiary certifying the names and true signatures of the officers of the Borrower and each Guarantor Subsidiary authorized to sign this Amendment Documentsand the Consent and the other documents to be delivered hereunder and thereunder.
(5c) The Administrative Agent shall have received all other documents it or A favorable opinion of corporate counsel for the Lender may reasonably request relating to any matters relevant heretoBorrower, all in form and substance satisfactory to the Administrative Agenteffect that this Amendment has been duly authorized, executed and delivered by the Borrower and a favorable opinion of corporate counsel for the Guarantor Subsidiaries to the effect that the Consent has been duly authorized, executed and delivered by each Guarantor Subsidiary.
(6d) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in Section 3 of this Amendment shall be true and each Loan Document are correct on and as of the Effective Date with the same effect date of such certificate as if though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the Effective Date.date of such certificate; and
(7ii) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect event has occurred and is hereby ratified and confirmed in all respectscontinuing that constitutes a Default.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This First Amendment shall be subject become effective as of the date (such date being referred to as the satisfaction of “First Amendment Effective Date”) when, and only when, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received the following, each dated as of the First Amendment Effective Date (A) from the Borrower unless otherwise specified), and the Lender a duly executed original (or, if elected by in such number of copies as the Administrative Agent, an Agent shall have requested:
(i) Fully executed facsimile copy) counterparts of this First Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date each Lender, and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6ii) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as Copies of the Effective Date with the same effect as if made on and as articles or certificate of incorporation of the Effective DateBorrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdictions of incorporation.
(7iii) No Term Loans Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing (i) the execution of the First Amendment and (ii) borrowings hereunder by the Borrower in an aggregate amount up to $450,000,000.
(iv) An incumbency certificate, executed by the Secretary 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 outstandingentitled to rely until informed of any change in writing by the Borrower.
(v) A certificate, signed by the chief financial officer of the Borrower, stating that the conditions specified in Section 4.2(b) and (c) of the Credit Agreement have been satisfied.
(vi) A written opinion of the Borrower’s counsel, addressed to the Lenders substantially in the form delivered at the initial closing of the Credit Agreement.
(vii) Any Notes requested by a Lender pursuant to Section 2.11 of the Credit Agreement payable to the order of each such requesting Lender.
(viii) Evidence satisfactory to the Administrative Agent of any required Governmental Approvals or consents regarding this First Amendment.
(b) From The Borrower shall have paid (i) to Xxxxx Fargo Securities, the Administrative Agent and after BTMU, for their own respective accounts, on the First Amendment Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant heretofees required to be paid under the First Amendment Fee Letter, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Administrative Fee Letter, (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required to be paid on or prior to the First Amendment Effective Date (including reasonable fees and expenses of counsel to the Administrative Agent) in connection with this First Amendment and (iv) all accrued and unpaid fees and interest due under the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower owing as of the occurrence of the First Amendment Effective Date.
Appears in 1 contract
Samples: Credit Agreement (WGL Holdings Inc)
Conditions of Effectiveness. (ai) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of date (the “Amendment Effective Date”) that each of the following conditions precedent:precedent shall have been satisfied (or waived in accordance with Section 10.2 of the Credit Agreement):
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected which may be by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”electronic transmission)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy counterpart of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the this Amendment Documents.
(5) The Administrative Agent which shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to been executed by the Administrative Agent., the Issuing Bank, the Lenders, Parent and the Borrower;
(62) The Each of the representations and warranties set forth in Section 3 4 of this Amendment shall be true and correct correct;
(3) Borrower shall have paid all fees and expenses due and owing to the Lenders, the Administrative Agent and the Sole Lead Arranger on and as or prior to the Amendment Effective Date pursuant to the terms of the Effective Date with Credit Agreement (including, but not limited to, reasonable attorneys’ fees of counsel to the same effect as if made on Administrative Agent (but limited to one primary outside counsel for the Administrative Agent and as Sole Lead Arranger)) and any fee letter agreed upon in writing by the Borrower, the Administrative Agent and the Sole Lead Arranger; and
(4) Borrower shall have furnished to the Administrative Agent a true, correct and complete executed copy of the Effective DateEOC Commitment Letter, which EOC Commitment Letter shall constitute the valid and binding obligations of the parties thereto, enforceable against such parties in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability).
(7ii) No Term Loans Without limiting the generality of the provisions of Sections 3.1 and 3.2 of the Credit Agreement, for purposes of determining compliance with the conditions specified in Section 3(a), each Lender that has signed this Amendment (and its permitted successors and assigns) shall be outstanding.
(b) From and after deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify shall have received written notice from such Lender prior to the Borrower of the occurrence of the proposed Amendment Effective DateDate specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be is subject to the satisfaction provisions of each Section 14.11 of the following conditions precedent:
2004 Credit Agreement. This Amendment shall become effective as of the date first above written (1the “Amendment Effective Date”) The when and only when, on or before the Amendment Effective Date, the Administrative Agent shall have received received:
(Aa) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) Counterparts of this Amendment and (B) from executed by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in Additional Obligors and the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))Required Lenders.
(2b) The Administrative Agent shall have received evidence of payment by the Borrower of all feesA certificate from a Responsible Officer, costs in form and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for substance reasonably satisfactory to the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received that all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date Borrower contained in the 2004 Credit Agreement, as amended hereby, are true, correct and complete in all material respects with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); that the Borrower is not in violation of any of the covenants contained in the 2004 Credit Agreement is Agreement, as amended as set forth herein. Except as expressly amended pursuant heretohereby; that, after giving effect to the Credit Agreement shall remain unchanged and in full force and effect transactions contemplated by this Amendment, no Default or Event of Default has occurred and is hereby ratified continuing; and confirmed in all respectsthat each of the conditions to the effectiveness of this Amendment has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise).
(c) The A certificate of the secretary, assistant secretary or general counsel of the Borrower certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Amendment and certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the borrowings contemplated under the 2004 Credit Agreement, as amended hereby, and the execution, delivery and performance of this Amendment.
(d) Favorable opinions of Xxx X. Xxxxxx, General Counsel to the Borrower, Cravath, Swaine & Xxxxx LLP, special counsel to the Borrower, Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, Pennsylvania counsel to the Borrower, and Drinker Xxxxxx & Xxxxx LLP, New Jersey counsel to the Borrower, addressed to the Administrative Agent will notify and the Borrower of Lenders with respect to the occurrence of Borrower, the Effective DateLoan Documents and such other matters as the Lenders shall reasonably request.
Appears in 1 contract
Samples: Five Year Credit Agreement (Jones Apparel Group Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the date first above written when, and only when, the Agent shall have received counterparts of this Amendment executed by the Grantors. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 25 of the Security Agreement. Section 1 hereof shall become effective when, and only when, the Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) in form and substance reasonably satisfactory to the Agent (collectively, the “Amendment Documents”):
(a) The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:Security Agreement Supplement duly executed by Holdings LLC.
(1b) The Administrative Agent shall have received (A) from the Borrower and the Lender a A Guaranty Supplement duly executed original (orby Holdings LLC, if elected by supplementing the Administrative AgentSubsidiary Guaranty referred to in the Credit Agreement, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement attached thereto (the “Old NotesGuaranty Supplement”)).
(2c) The Administrative Agent shall have received evidence Certified copies of payment by (i) the Borrower of all fees, costs and expenses due and payable as resolutions of the Effective Date under or in connection with [Board of Directors] of Holdings LLC approving this Amendment Amendment, the Security Agreement Supplement, and the Credit AgreementGuaranty Supplement and the matters contemplated hereby, including any fees arising under or referenced in Section 5 of this Amendment and any costs (ii) all documents evidencing other necessary action and expenses payable under Section 6(g) of this Amendment (including the reasonable feesgovernmental approvals, charges and disbursements of counsel for the Administrative Agentif any, with respect to the extent invoiced on or prior to Amendment Documents and the Effective Date)matters contemplated hereby.
(3d) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as A certificate of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such PersonHoldings LLC certifying the names and true signatures of the officers of Holdings LLC authorized to sign this Amendment, authorizing the other Amendment Documents, and the other documents to be delivered hereunder and thereunder.
(e) A favorable opinion of counsel for Holdings LLC, to the effect that:
(i) Each of the Amendment, the Security Agreement Supplement and Guaranty Supplement, constitutes the valid and binding obligation of Holdings LLC enforceable against Holdings LLC in accordance with its terms.
(ii) Neither the execution, delivery and or performance by Holdings LLC of the Amendment DocumentsAmendment, the Security Agreement Supplement or Guaranty Supplement, nor the compliance by Holdings LLC with the terms and provisions thereof will contravene any provision of any Applicable Law of the State of New York or any Applicable Law of the United States of America.
(5iii) The Administrative Agent shall have received all other documents it or Holdings LLC is a limited liability company legally existing and in good standing under the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to laws of the Administrative AgentState of Delaware.
(6iv) The representations Holdings LLC has the limited liability company power and warranties in Section 3 authority to execute, deliver and perform all of this Amendment shall be true its obligations under the Amendment, the Security Agreement Supplement and correct on Guaranty Supplement, and as the execution and delivery of each of the Effective Date with Amendment, the same effect as if made on Security Agreement Supplement and as of Guaranty Supplement has been duly authorized by all requisite limited liability company action by Holdings LLC. The Amendment, the Effective DateSecurity Agreement Supplement and Guaranty Supplement have been duly executed and delivered by Holdings LLC.
(7v) No Term Loans shall be outstanding.
(b) From The execution and after delivery by Holdings LLC of the Effective DateAmendment, the Credit Security Agreement is amended as set forth herein. Except as expressly amended pursuant heretoSupplement and Guaranty Supplement, and the performance by Holdings LLC of its obligations under the Amendment, the Credit Security Agreement shall remain unchanged Supplement and Guaranty Supplement, in full force and effect and is hereby ratified and confirmed in all respectsaccordance with its terms, do not conflict with the Certificate of Formation or Limited Liability Company Agreement of Holdings LLC.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Security Agreement (Madison River Communications Corp.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Amendment shall be is subject to the satisfaction of each of the following conditions precedent:
(1a) The Administrative Agent shall have received (Ai) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) counterparts of this Amendment and (B) from duly executed by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date Required Lenders and also stating each Lender that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower is increasing its Commitment under the Credit Agreement pursuant to this Amendment (each such Lender, an “Increasing Lender”) and the “Old Notes”))Administrative Agent and (ii) counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Subsidiary Guarantors.
(2b) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs such documents and expenses due and payable certificates as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on Agent or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender its counsel may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsrequest.
(c) The Administrative Agent will notify shall have received, for the Borrower account of each Increasing Lender that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, an upfront fee in an amount equal to the amount previously disclosed to the Increasing Lenders.
(d) The Administrative Agent shall have received payment and/or reimbursement of the occurrence Administrative Agent’s and its affiliates’ fees and expenses (including, to the extent invoiced, fees and expenses of counsel for the Administrative Agent) in connection with the Loan Documents.
(e) The Administrative Agent shall have administered such reallocations of each Lender’s Applicable Percentage of the Effective DateRevolving Credit Exposure under the Credit Agreement as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement as amended hereby. 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 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 Agreement.
Appears in 1 contract
Samples: Credit Agreement (Chicos Fas Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent:precedent shall have been satisfied (or waived by the Increasing Lenders):
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowerreceived, in form and substance satisfactory to the Administrative Agent, a copy counterparts of this Amendment executed by each of the resolutions passed by the board of directors Loan Parties, each of the Borrower, certified as of Increasing Lenders and the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment DocumentsAdministrative Agent.
(5b) The Administrative Agent shall have received all a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of Xxxxxx & Xxxxxxx LLP, counsel for the Borrower and the other documents it or Loan Parties and Xxxxxxx LLP, special Maryland counsel to the Lender may reasonably request relating to any matters relevant heretoCompany, all in each case, in form and substance satisfactory reasonably acceptable to the Administrative Agent.
(6) The representations Agent and warranties in Section 3 of covering such other matters relating to the Loan Parties and this Amendment as the Increasing Lenders shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinreasonably request. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is The Borrower hereby ratified and confirmed in all respectsrequests such counsel to deliver such opinion.
(c) The Administrative Agent will notify shall have received a certificate of a Secretary or an Assistant Secretary of the Company certifying (i) as to the resolutions authorizing the transactions contemplated by this Amendment and (ii) as to the incumbency of officers authorized to execute this Amendment and any New Notes.
(i) The fees separately agreed by the Administrative Agent and the Borrower, and (ii) to the extent invoiced to the Borrower at least one (1) Business Day prior to the Amendment Effective Date, all of the occurrence reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of one firm of counsel for the Administrative Agent) due and payable on the Amendment Effective DateDate shall have been paid in full.
(e) The Borrower shall have executed and delivered to the Administrative Agent a replacement Note in favor of each Increasing Lender that has requested a replacement Note in the amount of its Revolving Commitment set forth on Schedule 2.01A attached hereto.
(f) The Amendment No. 3 Effective Date shall have occurred.
Appears in 1 contract
Samples: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable become effective as of the Effective Date under or in connection with this Amendment date hereof when, and the Credit Agreementonly when, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent behalf of Lenders, shall have received from the Borrowerreceived, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.the following:
(4a) Counterparts of this Amendment duly executed by Borrower, each of the Guarantors and each Lender;
(b) The Administrative Agent Mortgaged Property Documents described on Schedule 2A attached hereto with respect to the Mortgaged Property described on Schedule 1A attached hereto shall have received from been delivered to Agent at Borrower’s expense, granting Agent a first priority Lien on such Mortgaged Property, subject only to Permitted Liens. Borrower will have paid to Agent any mortgage, recording, intangible, documentary stamp or other similar taxes and charges which Agent reasonably determines to be payable as a result of the Loans or the recording of such Mortgaged Property Documents to any state or any county or municipality thereof in which any of such Mortgaged Properties are located, and deliver to Agent such affidavits or other information which Agent reasonably determines to be necessary in connection with payment in order to insure that the Security Deeds on such Mortgaged Property located in such state secure Borrower, in form and substance satisfactory ’s obligations with respect to the Administrative Agent, a copy Loans;
(c) True and correct copies of resolutions of the resolutions passed by Borrower and the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing other Loan Parties that authorize the execution, delivery and performance of this Amendment and the Amendment Documents.other documents executed in connection herewith;
(5d) The Administrative Agent shall have received all Legal opinions from counsel to Borrower and the others Loan Parties regarding due organization, existence, good standing, due authorization, due execution and delivery, enforceability and usury for the Borrower and the other documents it or the Lender Loan Parties, including opinions from counsel in such other states as may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative be requested by Agent.;
(6e) For the benefit of each Extending Lender, the payment by Borrower of an amendment fee equal to .25% of the Commitment of each such Lender, in immediately available funds, such fee being fully earned and non-refundable when paid;
(f) The representations and warranties in made pursuant to Section 3 22 of this Amendment shall be true and correct on correct; and
(g) Payment of all reasonable and as of the Effective Date documented expenses incurred by Agent in connection with the same effect as if made on execution and as delivery of this Amendment, together with reasonable fees and actually incurred expenses of Agent’s counsel with respect to this Amendment and other post-closing matters, in each case to the Effective Dateextent invoiced at least one (1) Business Day prior to the date hereof.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Forestar Group Inc.)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Second Amendment shall be subject to will become effective on the satisfaction of date on which each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (precedent are satisfied or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note waived (the “New NoteSecond Amendment Effective Date”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).):
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3a) The Administrative Agent shall have received from the Borrower, the General Partner, the Parent, each other Obligor and the Lenders, counterparts (in form and substance satisfactory to it, a Compliance Certificate such number as may be requested by the Administrative Agent) of September 30, 2009 calculated this Second Amendment signed on a pro forma basis after giving effect to this Amendmentbehalf of such Person.
(4b) The Administrative Agent shall have received from a certificate of a Responsible Officer, certifying that the BorrowerParent and Finance Co. are concurrently issuing Senior Notes under the Senior Indenture in an amount equal to $400,000,000, in form and substance satisfactory the net cash proceeds therefrom are being applied concurrently with such issuance to prepay all Debt outstanding under the Administrative AgentSecond Lien Term Loan Agreement and prepay Loans (and cash collateralize Letters of Credit, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5if necessary) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to eliminate any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsBorrowing Base Deficiency.
(c) The Administrative Agent will notify and the Borrower Lenders shall have received, and be satisfied with the terms of, a copy of the occurrence preliminary offering memorandum, the final offering memorandum and any other material documents relating to the offering of Senior Notes on the Second Amendment Effective Date.
(d) The Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Administrative Agent with respect to all Debt outstanding under the Second Lien Term Loan Agreement evidencing that all commitments to make any extension of credit under the Second Lien Term Loan Agreement shall have been terminated contemporaneously with the Second Amendment Effective Date and all amounts thereunder shall have been paid in full contemporaneously with the Second Amendment Effective Date; with all liens and surety obligations in favor of the Second Lien Administrative Agent and the Second Lien Lenders thereunder being unconditionally released, subject only to the filing of applicable terminations, releases or assignments.
(e) The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the date hereof.
(f) No Default or Event of Default shall have occurred and be continuing as of the Second Amendment Effective Date.
(g) The Administrative Agent shall have received such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this Second Amendment to be effective when it has received documents confirming compliance with the conditions set forth in this Section 3 or the waiver of such conditions as agreed to by the Lenders. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to the satisfaction of each become effective as of the following conditions precedent:
(1) The Administrative date set forth above when, and only when, the Agent shall have received (Ain sufficient copies for each Bank) from the Borrower and the Lender a duly executed original following:
(or, if elected by the Administrative Agent, an executed facsimile copya) Counterparts of this Amendment and (B) from executed by the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date Guarantor and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstandingBanks.
(b) From Certified copies of the resolutions of the Board of Directors of the Borrower authorizing this Amendment and after of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Effective Date, Secretary or Assistant Secretary of the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsBorrower.
(c) The Administrative Agent will notify the Borrower Certified copies of the occurrence resolutions of the Effective Board of Directors of the Guarantor authorizing this Amendment and of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Secretary or Assistant Secretary of the Guarantor.
(d) A favorable opinion of counsel to the Borrower, to the effect set forth in Annex I to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(e) A favorable opinion of the General Counsel of the Guarantor, to the effect set forth in Annex II to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(f) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Existing Agreement.
(g) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Multi-Year Credit Agreement, dated as of September 1, 1993, as amended, among the Borrower, the Guarantor, the banks party thereto and the Agent.
(h) Evidence that the "Expiration Date" of the Heat Purchase Contract has been extended to August 24, 2000.
(i) Such other instruments, opinions or documents as any Bank through the Agent may reasonably request.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness Agreement shall become effective as of Section 2 the Effective Date of this Amendment shall be subject to Agreement upon the satisfaction of all of the following conditions:
(i) Borrowers shall have delivered to Administrative Agent an original (or executed faxed or electronic copy) of this Agreement, duly executed by each of the following conditions precedent:Loan Parties;
(1ii) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (orcopy of the Management Services Agreement Amendment and the same shall be in full force and effect, if elected by the and shall be satisfactory in all respects to Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).;
(2iii) The Borrowers shall have delivered to Administrative Agent fully executed copies of the Parent $5,000,000 Debt Documents and the same shall be in full force and effect, and shall be satisfactory in all respects to Administrative Agent;
(iv) Administrative Agent shall have received evidence that the full proceeds of payment the Investor Notes received by Parent shall have been contributed as equity to the Borrower capital of all feesDanimer Holdings in form and substance satisfactory to Administrative Agent;
(v) each of the representations and warranties contained in Section 6 of this Agreement shall be true, costs correct and expenses due and payable accurate as of the Effective Date under or date of this Agreement; and
(vi) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Amendment and Agreement or any of the Credit Agreementtransactions arising hereunder or otherwise related hereto or referred to herein, including any fees arising under actual out-of-pocket costs, expenses, charges or referenced in Section 5 expenses of this Amendment Administrative Agent and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations parties hereto specifically acknowledge and warranties in Section 3 agree that: (i) the execution and delivery of this Amendment Agreement shall not be true deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and correct on and as (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinother Loan Documents. Except as expressly amended pursuant hereto, the Credit Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and is are hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify , and the Borrower Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the occurrence Guarantors party hereto: (i) specifically consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to which it is a party; (iii) reaffirms the waivers of each and every one of the Effective Datedefenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of any other party under the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Live Oak Acquisition Corp)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (A) from the Borrower received, in form and the Lender a duly executed original (or, if elected by substance reasonably satisfactory to the Administrative Agent, an executed facsimile copy) counterparts of this Amendment executed by each of the applicable Loan Parties and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”))those Lenders comprising Requisite Lenders.
(2b) The Administrative Agent shall have received evidence of payment by the Borrower of all feesreceived, costs in form and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for substance reasonably satisfactory to the Administrative Agent, to (i) the extent invoiced Parent Guaranty executed by the Company and (ii) the Subsidiary Guaranty executed by each Material Subsidiary identified as a Subsidiary Guarantor on or prior to the Effective Date)Schedule 1 attached hereto.
(3c) The Administrative Agent shall have received from the Borrowerreceived, in form and substance reasonably satisfactory to itthe Administrative Agent, a Compliance Certificate as counterparts of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendmenteach of (i) the Pledge Agreement and (ii) the Intercreditor Agreement executed by each of the parties thereto.
(4d) The Administrative Agent shall have received from the Borrowerreceived, in form and substance reasonably satisfactory to the Administrative Agent, a copy of the resolutions passed executed amendment (or amendment to be executed simultaneously with this Amendment) to the PNC Bank Loan Agreement modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications that are not materially more favorable to the lenders under the PNC Bank Loan Agreement than this Amendment.
(e) The Administrative Agent shall have received a copy of an executed amendment (or amendment to be executed simultaneously with this Amendment) to that certain Senior Secured Term Loan Credit Agreement, dated as of June 8, 2016, by and among the Borrower, the other borrowers party thereto from time to time, the lenders party thereto from time to time and Huntington National Bank, as administrative agent (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Huntington Bank Credit Agreement”).
(f) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of Xxxxxxxx & Xxxxx LLP, counsel for the Borrower and the other Loan Parties and Faegre Drinker Xxxxxx & Xxxxx LLP, special Indiana counsel to the Borrower and the other Loan Parties, in each case, in form and substance reasonably acceptable to the Administrative Agent and covering such customary matters relating to the Loan Parties and this Amendment as the Requisite Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(g) The Administrative Agent shall have received the following items from the Borrower:
(i) Certificates of good standing for each Loan Party from the states of organization of such Loan Party, certified by the board appropriate governmental officer and dated not more than thirty (30) days prior to the Amendment Effective Date;
(ii) Copies of directors the formation documents of each Loan Party certified by an officer of such Loan Party, together with all amendments thereto;
(iii) Incumbency certificates, executed by officers of each Loan Party, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Loan Party (and to make borrowings and request other extensions of credit hereunder on behalf of the Borrower, certified as in the case of the Effective Date Borrower), upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(iv) Copies, certified by a Secretary or an Assistant Secretary of such Personeach Loan Party of the resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for the Administrative Agent) authorizing the transactions contemplated by this Amendment, and the execution, delivery and performance of the Amendment DocumentsLoan Documents to be executed and delivered by the other Loan Parties; and
(v) UCC financing statement, judgment, and tax lien searches with respect to each Loan Party from its state of organization.
(5i) The fees provided for in Section 7 of this Amendment and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable and documented fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date in accordance with the Amended Credit Agreement shall have been paid in full.
(i) The Administrative Agent and each Lender shall have received all documentation and other documents it information about the Loan Parties as shall have been reasonably requested by the Administrative Agent or the such Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory at least three (3) Business Days prior to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with that it shall have reasonably determined is required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation, the same effect as if made on Patriot Act and as of the Beneficial Ownership Regulation to the extent requested by the Administrative Agent or such Lender at least three (3) Business Days prior to the Amendment Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify the Borrower of the occurrence of the Effective Date.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Washington Prime Group, L.P.)
Conditions of Effectiveness. This First Amendment shall become effective as of the day and year first above written when and only when, the following conditions precedent are satisfied (or waived in writing by the Agent):
(a) The effectiveness of Section 2 of this Amendment the Agent shall be subject to the satisfaction of have received each of the following conditions precedent:
(1) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrowerdocuments, in form and substance satisfactory to the Administrative Agent, a duly executed by all parties thereto (collectively, the “Amendment Documents”):
(i) this First Amendment, executed by the Borrower and all of the Lenders, and acknowledged and consented to by the Guarantors;
(ii) an executed copy of the Notes; and
(iii) an executed Joinder to Guaranty executed by all new Guarantors.
(b) the Agent shall have received a certificate from the Borrower, in form satisfactory to the Agent, certifying as of the date of this First Amendment:
(i) the names and true signatures of the officers of Borrower authorized to execute and deliver, in the name of and on behalf of Borrower, this First Amendment and all documents and instruments contemplated herein;
(ii) copies of the resolutions passed by (or similar authorizing documents) of the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, Borrower and Guarantors approving and authorizing the execution, delivery and performance by Borrower and Guarantors of the Amendment Documents.this First Amendment; and
(5iii) The Administrative Agent shall have received all other documents it or and matters as the Lender Agent may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6) The representations and warranties in Section 3 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.request;
(c) The Administrative Agent will notify the Borrower shall have paid all reasonable accrued and unpaid fees, costs and expenses of the occurrence Agent and the Lenders in connection with this First Amendment and any other agreements, instruments or documents related hereto, and the transactions contemplated hereby and thereby to the extent due and payable, including, without limitation, the reasonable fees and out of pocket expenses of legal counsel for the Effective DateAgent; and
(d) the Agent and each Lender shall have received copies of all other documents, instruments and certificates which the Agent, any Lender or its or their counsel may reasonably request in connection herewith.
Appears in 1 contract
Samples: Credit Agreement (LHC Group, Inc)
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this This Amendment shall be subject to become effective as of the satisfaction of first date (the “Third Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(1a) The Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment and (B) from the Borrower, a duly executed original (or an executed facsimile copy with an original to follow promptly thereafter) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedes, without novation, the Revolving Credit Notes previously delivered by the Borrower under the Credit Agreement (the “Old Notes”)).
(2) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrowerreceived, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, a copy :
(i) (x) counterparts of the resolutions passed this Amendment executed by the board of directors of the Borrower, certified the Administrative Agent and all Lenders, or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment DocumentsGuarantors.
(5ii) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all Evidence that an amendment in form and substance reasonably satisfactory to the Administrative Agent with respect to each of the existing Mortgages (the “Mortgage Amendments”) has been duly executed, acknowledged and delivered by a duly authorized officer of each party thereto on or before such date and are in form suitable for filing and recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable.
(iii) A modification and date-down endorsement to the existing Mortgage Policy for each Mortgaged Property, increasing the insured amount of such existing Mortgage Policy to an amount reasonably satisfactory to the Administrative Agent.
(6iv) An executed favorable opinion of counsel for the Loan Parties with respect to the valid existence, corporate power and authority of such Loan Parties to enter into this Amendment, and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(v) Such advice from local counsel retained by the Borrower as may be reasonably required by the Administrative Agent, relating to the payment of or exemption from any documentary stamp, mortgage or intangible taxes in connection with the Mortgage Amendments.
(vi) If any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”) pursuant to a standard flood hazard determination form ordered and received by the Administrative Agent, (A) the applicable Subsidiary Guarantor's written acknowledgment of receipt of written notification from the Administrative Agent as to the fact that such Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (B) copies of the applicable Subsidiary Guarantor’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent and naming the Administrative Agent as sole loss payee on behalf of the Secured Parties.
(vii) Evidence that all fees, costs and expenses have been paid in connection with the preparation, execution, filing and recordation of the Mortgage Amendments, including, without limitation, reasonable attorneys’ fees (including the reasonable fees and expenses of Shearman & Sterling LLP), filing and recording fees, title insurance company premiums, coordination fees, documentary stamp, mortgage and intangible taxes and title search charges and other charges incurred in connection with the recordation of the Mortgage Amendments.
(viii) Such other consents, agreements and confirmations of third parties relating to the Mortgaged Properties or the Mortgage Amendments as the Administrative Agent may deem reasonably necessary or desirable and evidence that all other actions that the Administrative Agent may deem reasonably necessary or desirable in order to create valid first (subject to Permitted Encumbrances) and subsisting Liens on the property described in the Mortgages have been taken.
(ix) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent 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, the Consent and the matters contemplated hereby and thereby.
(x) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent.
(b) The representations and warranties set forth in Section 3 each of this Amendment the Loan Documents shall be true and correct in all material respects on and as of the Third Amendment Effective Date with the same Date, before and after giving effect to this Amendment, as if though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Third Amendment Effective Date, the Credit Agreement is amended in which case as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respectsof such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default or an Event of Default.
(d) The Administrative Agent will notify the Borrower shall have received payment in full of an amendment fee equal to 0.25% of the occurrence sum of the Effective DateCommitments of all Lenders, which fee shall be for the ratable benefit of the Lenders. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness Agreement shall become effective as of Section 2 of this the Amendment shall be subject to No. Four Effective Date upon the satisfaction of each all of the following conditions precedentconditions:
(1i) The Borrowers shall have delivered to Administrative Agent shall have received (A) from the Borrower and the Lender a duly executed an original (or, if elected by the Administrative Agent, an or executed facsimile faxed or electronic copy) of this Amendment and (B) from the BorrowerAgreement, a duly executed by each of the Loan Parties;
(ii) Parent shall have delivered to Administrative Agent an original (or an executed facsimile copy with an original to follow promptly thereafterfaxed or electronic copy) of a replacement Revolving Credit Note (the “New Note”) substantially in the form of Exhibit B-2 Ratification attached to the Credit Agreement (but dated the Effective Date and also stating that it replaces and supersedesthis Amendment, without novation, the Revolving Credit Notes previously delivered duly executed by the Borrower under the Credit Agreement (the “Old Notes”)).Parent; and
(2iii) The the receipt by Administrative Agent shall have received evidence of payment by the Borrower payment, in immediately available funds, of all reasonable out-of-pocket fees, costs costs, charges and expenses due and payable as of the Effective Date under or incurred by Administrative Agent in connection with the preparation, execution and delivery of this Amendment and Agreement or any of the Credit Agreementtransactions arising hereunder or otherwise related hereto or referred to herein, including any fees arising under actual out-of-pocket costs, expenses, charges or referenced in Section 5 expenses of this Amendment Administrative Agent and any costs and expenses payable under Section 6(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the Effective Date).
(3) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to it, a Compliance Certificate as of September 30, 2009 calculated on a pro forma basis after giving effect to this Amendment.
(4) The Administrative Agent shall have received from the Borrower, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by the board of directors of the Borrower, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of the Amendment Documents.
(5) The Administrative Agent shall have received all other documents it or the Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(6b) The representations parties hereto specifically acknowledge and warranties in Section 3 agree that: (i) the execution and delivery of this Amendment Agreement shall not be true deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and correct on and as (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the Effective Date with the same effect as if made on and as of the Effective Date.
(7) No Term Loans shall be outstanding.
(b) From and after the Effective Date, the Credit Agreement is amended as set forth hereinother Loan Documents. Except as expressly amended pursuant hereto, the Credit Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and is are hereby ratified and confirmed in all respects.
(c) The Administrative Agent will notify , and the Borrower Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the occurrence Guarantors party hereto: (i) specifically consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to which it is a party; (iii) reaffirms the waivers of each and every one of the Effective Datedefenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of any other party under the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Danimer Scientific, Inc.)
