Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent: (a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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. (b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. (c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019. (d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel. (e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement). (f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement. (g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 4 contracts
Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Conditions of Effectiveness. The effectiveness This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:
(i) the provisions of Sections 1 Borrowers shall have executed and 2 delivered counterparts of this Agreement (which shall be deemed Amendment to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and Administrative Agent, (ii) the amendment Required Lenders shall have executed and restatement of the Existing Credit Agreement pursuant to Section 3 delivered counterparts of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (addressed Amendment to the Administrative Agent and the Lenders and dated the Restatement Effective Date(iii) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Multicurrency Administrative Agent shall reasonably request.have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 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 such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 prior to and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, immediately after giving effect to this AgreementAmendment, with the conditions set forth in paragraphs (a) no Default or Event of Default shall have occurred and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).be continuing;
(fd) The the Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other amounts due officers of such Borrower authorized to sign this Amendment, and payable on (C) contain appropriate attachments, including the certificate or prior articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Restatement Administrative Agent on the Second Amendment Effective Date), includingand (ii) a certificate of compliance/status/good standing, to as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the extent invoiced Administrative Agent at least two five (25) Business Days prior to the Restatement Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, reimbursement or payment execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be reimbursed or paid by on the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective DateAmendment No. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.1
Appears in 2 contracts
Samples: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and Section 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, Amendment shall be subject to the satisfaction of the following conditions precedent:
(a) The Borrower, Administrative Agent (or its counsel) and the Lenders, which constitute the Majority Lenders, shall have received from duly executed and delivered this Amendment pursuant to Section 13.04 of the BorrowerLoan Agreement; provided, the Lenders under the Existing Credit Agreementhowever, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart of that this Agreement signed on behalf of such party Amendment shall have no binding force or written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of effect unless all conditions set forth in this Agreement) that such party has signed a counterpart of this Agreement.Section 3 have been satisfied;
(b) The no Default or Event of Default (in each case subject to any cure period provided under the Loan Agreement) under the Loan Agreement shall have occurred and be continuing;
(c) Borrower and Administrative Agent shall have received duly executed legal opinions and delivered that certain Amendment to Fee Letter;
(addressed d) Borrower shall have delivered to Administrative Agent amendments to each Warrant delivered prior to the date hereof that reduce the Exercise Price (as defined in each such Warrant), in each case in the form attached hereto as Exhibit B and duly executed by Borrower;
(e) Borrower shall have delivered to Administrative Agent, for the Lenders, new Warrants, in each case in the form attached hereto as Exhibit C and duly executed by Borrower [****]= Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. (for such number of shares as indicated opposite each Holder’s (as defined in each such Warrant) name on Schedule I attached hereto); and
(f) Borrower shall have paid or reimbursed Administrative Agent and the Lenders for their reasonable out of pocket costs and dated expenses (including the Restatement Effective Date) reasonable fees and expenses of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement Agent’s and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(cLenders’ legal counsel) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating incurred in connection with this Amendment pursuant to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii13.03(a)(i)(z) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Loan Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Samples: Term Loan Agreement (T2 Biosystems, Inc.), Term Loan Agreement (T2 Biosystems, Inc.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 1 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, Agreement shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each of the BorrowerBorrowers, the Required Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Agreement and the Swingline Lender 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 AgreementAgreement and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received executed legal a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx K&L Gates LLP, U.S. counsel to the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLCK&L Gates LLP, special Michigan U.K. counsel to the BorrowerLoan Parties, in each case 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 BorrowerLoan Parties, the Restated Credit AgreementLoan 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 Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated herebyrequest, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers under the Existing Credit Agreement and the Restated Credit Agreement Loan Documents and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to . If any Lender requesting the same in a written notice to the Borrower at least 10 days prior to LC Disbursements are outstanding as of the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement))such LC Disbursements shall be repaid, in each case at least three (3) Business Days prior to the Restatement Effective Datetogether with any interest accrued thereon. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Samples: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 6 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is January 4, in 2017) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the Lenders under MLP, (C) the Existing Credit Agreement, Consenting Lender and (D) the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 6 Effective Date and addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPConsenting Lender, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) certificates of good standing (to the extent such documents and concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to the organization, existence act as a Responsible Officer in connection with this Amendment and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(eii) The Administrative Agent shall have received a certificate, dated as of the Restatement Amendment No. 6 Effective Date and Date, signed by an Authorized a Responsible Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with satisfaction of the conditions set forth in paragraphs (aSections 2(e) and (bf) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)this Amendment.
(fd) The Payment by the Borrower of (x) all reasonable fees and expenses due to the Administrative Agent and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date“Arranger”), including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by (including the Borrower under the Existing Credit Agreement legal fees and the Restated Credit Agreement and (ii) evidence expenses of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent) and (y) a consent fee, and directly to any Lender requesting the same in a written notice payable to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies Consenting Lender for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement))its own account, in each case at least three (3) Business Days prior an amount equal to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders 0.25% of the Restatement Effective Date, and such notice shall be conclusive and binding.Revolving Loan Commitments of the Consenting Lender as of the Amendment No. 6
Appears in 2 contracts
Samples: Revolving Credit Agreement (OCI Partners LP), Revolving Credit Agreement
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 2 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is April 4, in 2014) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the MLP, (D) the Cashless Option Lenders, (E) the Additional Term B-3 Lender, (F) Consenting Lenders constituting the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Notice of Borrowing in accordance with the requirements of the Credit Agreement.
(c) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special counsel to the Credit Parties, dated as of the Amendment No. 2 Effective Date and addressed to the Administrative Agent and each of the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 2 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arranger (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower). Substantially simultaneous with effectiveness, the Lenders (including all Cashless Option Lenders but excluding the Additional Term B-3 Lender in its capacity as such) under the existing Credit Agreement shall have been paid (x) all accrued principal (other than the principal amount of Converted Term B Loans) and interest on their Term B-2 Loans to, but not including, the Amendment No. 2 Effective Date and (y) the prepayment premium pursuant to Section 5.01(b) of the Credit Agreement.
(f) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 2 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(g) No Default or Event of Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received Note executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the by Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received Lender that requests such documents and certificates as the Administrative Agent or its counsel may a Note reasonably request relating to the organization, existence and good standing in advance of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (Amendment No. 2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the date when, and only when (the “Amendment No. 3 Effective Date”), each of the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentwaived:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(bi) The Administrative Agent shall have received counterparts of this Amendment executed legal opinions by (addressed to A) each of the Borrower and AMR, (B) each of the Administrative Agent and the Lenders Collateral Agent and (C) each of the Required Lenders, or as to any such Lender, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment.
(ii) The Administrative Agent shall have received a certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Restatement date of the Amendment No. 3 Effective Date) of , certifying as to (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPthe truth of the representations and warranties contained in the Financing Documents as though made on and as of the date of the Amendment No. 3 Effective Date, counsel except to the Borrowerextent that any such representation or warranty relates to a specified date, in which case such representation or warranty shall be or was true and correct as of such date, and (ii) Dxxxxx Gxxxxxx PLLCthe absence of any event occurring and continuing, special Michigan counsel to or resulting from the BorrowerAmendment No. 3 Effective Date, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestthat constitutes a Default or an Event of Default.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(diii) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the BorrowerLoan Parties, and the authorization of the transactions under this Amendment and any other legal matters relating to the Loan Parties, this Amendment or the transactions contemplated herebyhereunder, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(eiv) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date Immediately before and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this AgreementAmendment, with the conditions set forth in paragraphs no Default or Event of Default shall have occurred and be continuing.
(v) The Borrower shall have paid (a) to the Administrative Agent, for the benefit of each Lender executing this Amendment on or before 5:00 PM (EST) on June 25, 2009, an amendment fee equal to 0.75% of the Commitments and Advances of each such Lender in effect or outstanding, as the case may be, on the date hereof and (b) of Section 6.2 all invoiced accrued fees and expenses of the Restated Credit Agreement Administrative Agent and the Lead Arrangers (includingincluding the reasonable fees and expenses of Shearman & Sterling LLP, counsel for the Administrative Agent and the Lead Arrangers, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) which invoices shall have received (i) all fees and other amounts due and payable on or prior been provided to the Restatement Effective Date, including, to the extent invoiced Borrower at least two (2) Business Days prior to the Restatement Amendment No. 3 Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement).
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
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Samples: Credit Agreement (Amr Corp), Credit Agreement (American Airlines Inc)
Conditions of Effectiveness. The effectiveness of this First Amendment (i) including the provisions of Sections amendments contained in SECTION 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York timeagreements contained in SECTION 2) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be are subject to the satisfaction (or written waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) The Administrative Agent (or its counsel) This First Amendment shall have received from been duly executed by the BorrowerBorrowers, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Subsidiary Guarantors and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Term Loan B Agent (which may include a copy transmitted by facsimile or other electronic transmission method), and delivered to the Term Loan B Agent, and the Lenders under the Credit Agreement consisting of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementat least the Required Term B Lenders immediately prior to the First Amendment Effective Date.
(b) Jefferies, as Repricing Arranger, shall have received all fees due and payable under that certain engagement letter, dated as of December 4, 2019, by and among the Borrowers and Jefferies (the “First Amendment Engagement Letter”).
(c) The Administrative Term Loan B Agent shall have received executed favorable legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (iA) Sxxxxxx Xxxxxxx Xxxxxx, Xxxx & Bxxxxxxx Xxxxxxxx LLP, special counsel to the BorrowerLoan Parties, (B) Xxxxx & Xxxxxx, L.L.P., Nevada counsel to the Loan Parties, (C) Xxxxxx and Calder, Cayman Islands counsel to the Loan Parties, and (iiD) Dxxxxx Gxxxxxx PLLCDLA Piper Luxembourg S.à x.x., special Michigan Luxembourg counsel to the BorrowerLoan Parties, with respect to the capacity of the Luxembourg Loan Parties to enter into the Loan Documents, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019Term Loan B Agent.
(d) The Administrative Term Loan B Agent shall have received such documents and certificates a certificate signed by a Responsible Officer of the Borrowers as the Administrative Agent or its counsel may reasonably request relating to the organization, existence matters set forth in paragraphs (g) and good standing (h) of this SECTION 3;
(e) The Term Loan B Agent shall have received (I) a certificate dated as of the Borrower, and the authorization First Amendment Effective Date of the transactions contemplated herebycorporate secretary or an assistant or associate corporate secretary or director (or such other officer reasonably acceptable to the Term Loan B Agent) of each of the Loan Parties, all in form and substance reasonably satisfactory to the Administrative Term Loan B Agent, certifying (i) that either (A) attached thereto is a true and complete and up to date copy of the articles or certificate of incorporation, memorandum and articles of association or other comparable organizational documents including any certificate on change of name and all amendments thereto of such Loan Party certified (other than in the case of any Loan Party that is a Cayman Islands exempted company) as of a recent date by the secretary of state (or comparable Governmental Authority) of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification or (B) the articles or certificate of incorporation or other comparable organizational documents of such Loan Party delivered on the Closing Date to the Term Loan B Agent have not been amended and its counsel.
are in full force and effect, (eii) The Administrative that either (A) attached thereto is a true and complete copy of the bylaws or comparable governing documents of such Loan Party, as then in effect and as in effect at all times without amendment of supersession from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate or (B) that the bylaws or comparable governing documents of such Loan Party delivered on the Closing Date to the Term Loan B Agent shall have received not been amended and are in full force and effect and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors or other comparable governing body or bodies of such Loan Party and, if applicable all the holders of the issued shares of such Loan Party, authorizing the execution, delivery and performance of this First Amendment and any related Loan Documents to which it is a party, which are in full force and effect without amendment or supersession as of the date of the certificate, and as to the incumbency and genuineness of the signature of each officer, director or other comparable authorized manager or attorney of such Loan Party, executing this First Amendment or any of such other Loan Documents, and attaching all such copies of the documents described above together with, in the case of the Loan Parties incorporated in the Cayman Islands, copies of their internal registers of directors and officers and registers of mortgages and charges and (II) in respect of (i) any Luxembourg Loan Party, (ii) WHBL Luxembourg S.à x.x., (iii) Herbalife Luxembourg Distribution S.à x.x., (iv) HLF Luxembourg Distribution S.à x.x. and (v) Herbalife Africa (together the “Luxembourg Entities” and each a “Luxembourg Entity”), a manager’s certificate dated as of the Restatement First Amendment Effective Date and signed by an Authorized Officer a manager of the Borrowerrelevant Luxembourg Entity, confirming compliance, after giving effect certifying the following items: (A) an up-to-date copy of the articles of association of the relevant Luxembourg Entity; (B) an electronic true and complete certified excerpt of the Luxembourg Companies Register pertaining to the relevant Luxembourg Entity dated as of the date of this Agreement; (C) an electronic true and complete certified certificate of non-registration of judgment (certificat de non-inscription d’une décision judiciaire) dated as of the date of this Agreement issued by the Luxembourg Companies Register and reflecting the situation no more than one Business Day prior to the date of this Agreement; (D) with respect to the Luxembourg Loan Parties only, true, complete and up-to-date board resolutions approving the entry by the relevant Luxembourg Loan Party into, among others, the Loan Documents; (E) the relevant Luxembourg Entity is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (F) (with respect to the Luxembourg Loan Parties only) a true and complete specimen of signatures for each of the managers or authorized signatories having executed for and on behalf of the relevant Luxembourg Loan Party the Loan Documents; (G) a certificate of the domiciliation agent or signed by a manager of the relevant Luxembourg Entity certifying, as the case may be, (i) due compliance by the relevant Luxembourg Entity with, and adherence to, the provisions of the Luxembourg Law dated 31 May 1999 concerning the domiciliation of companies, as amended, and the related circulars issued by the Commission de Surveillance du Secteur Financier or (ii) that the premises of the Luxembourg Entity are leased pursuant to a legal, valid and binding (and still in full force and effect) lease agreement and correspond to sufficient unshared office space, with the conditions set forth in paragraphs (a) a separate entrance and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)sufficient office equipment allowing it to effectively carry out its business activities.
(f) The Administrative Term Loan B Agent (or the Resigning Administrative Agent, as applicable) shall have received a certificate as of a recent date of the good standing of each of the Loan Parties under the laws of its jurisdiction of organization, from the secretary of state (or comparable Governmental Authority) of such jurisdiction as well as corresponding bring-down good standing certificates dated as of the First Amendment Effective Date, save that, (i) all fees such bring-down good standing certificates with respect to any Loan Party that is formed in a State of the United States other than Delaware shall be obtained by the Repricing Arranger’s counsel from the applicable secretary of state or (comparable Governmental Authority) and other amounts due and payable on or prior to (ii) no such bring-down good standing certificate is required for any Loan Party that is a Cayman Islands exempted company where the Restatement Effective Date, including, to above recent date of the extent invoiced at least two (2) certificate of good standing initially provided is no earlier than 10 Business Days prior to the Restatement First Amendment Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.;
(g) The Borrower shall have delivered No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the Administrative Agenttransactions contemplated hereby;
(h) The representations and warranties of each Loan Party set forth in SECTION 4(b) of this First Amendment are true and correct and the representations and warranties of each Loan Party set forth in SECTIONS 4(a) and (c) of this First Amendment are true and correct in all material respects on and as of the First Amendment Effective Date (immediately after giving effect to this First Amendment) as if made on as of such date, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined except in the Restated Credit Agreement) case of any representations and warranties expressly stated to relate to a specific earlier date, in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (which case such representations and warranties shall be true and correct in all material respects as defined in the Restated Credit Agreement))of such earlier date; provided, that, in each case at least three such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”;
(3i) Business Days prior The Term Loan B Agent shall have received a solvency certificate in the form of Exhibit J of the Credit Agreement from a Responsible Officer of the Parent with respect to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders solvency of the Restatement Effective DateParent and its Subsidiaries, and such notice shall be conclusive and binding.on a consolidated basis, after giving effect to the First Amendment;
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Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) Amendment on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Amendment No. 1 Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to precedent that 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.
(b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees counterparts of this Amendment duly executed by the Borrower, the Lenders and other amounts due the Administrative Agent, (ii) payment and/or reimbursement of the Administrative Agent’s reasonable and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable documented out-of-pocket expenses required (including, to be reimbursed or paid by the Borrower under extent invoiced, the Existing reasonable fees and expenses of counsel for the Administrative Agent) in connection with this Amendment, (iii) favorable written opinions (addressed to the Credit Agreement Parties and dated the Restated Credit Agreement Amendment No. 1 Effective Date) from (x) Goodsill Xxxxxxxx Xxxxx & Xxxxxx LLP and (iiy) evidence of payment of all accrued Xxxxxxx X. Xxxxxxxxxx, Esq., Executive Vice President, General Counsel, Secretary and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Chief Administrative Officer of the Existing Credit Agreement.
Borrower, (giv) The a certificate of the 4# secretary of Borrower shall certifying (a) that there have been no changes in the articles of incorporation or bylaws of Borrower since May 2, 2014 (or if changes have occurred, attaching the current articles of incorporation or bylaws), (b) resolutions of its board of directors authorizing the execution, delivery and performance of the Amendment, (c) to the extent modified from the incumbency and specimen signatures delivered to the Administrative AgentAgent as of May 2, 2014, the incumbency and directly specimen signature of each of its officers authorized to any Lender requesting sign this Amendment and (d) a certificate of good standing for the same in a written notice to the Borrower at least 10 days Borrower, dated on or immediately prior to the Restatement Amendment No. 1 Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion Date from the “legal entity customer” definition under Director of the Beneficial Ownership Regulations Department of Commerce and Consumer Affairs of the State of Hawaii and (v) such other documents, instruments and agreements as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingmay reasonably request.
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Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York timesuch date being referred to as the “Effective Date”) on the date when each of the following conditions precedent shall have been satisfied or waived (it being understood, for the avoidance of doubt, that the amendments to effect the Term B Loan Extension shall become effective upon satisfaction of all the following conditions applicable thereto (the “Extension Effective Time”) and the amendments to effect the Term B Loan Increase shall become effective upon satisfaction of all of the following conditions applicable thereto (the “Incremental Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:):
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment signed by (i) the Parent Borrower, the Guarantors, the Administrative Agent, and (ii) (A) in the case of the Term B Loan Extension, the Extended Maturity Term B-1 Dollar Lenders under and the Extended Maturity Term B-1 Euro Lenders, (B) in the case of the Term B Loan Increase, the Incremental Term B-1 Euro Lenders and (C) in the case of the amendments of the Existing Credit AgreementAgreement made pursuant to Section 10.01, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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 AgreementRequired Lenders.
(b) The Administrative Agent shall have received executed (x) the legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) opinion of (i) Sxxxxxx Xxxxxxx Ropes & Bxxxxxxx Xxxx LLP, counsel to the Borrower, Loan Parties and (iiy) Dxxxxx Gxxxxxx PLLCthe legal opinion of Smith, special Michigan Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., North Carolina counsel to the BorrowerLoan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements (i) copies of each Organization Document for the Parent Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of the Parent Borrower for and each quarterly period ended March 31Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of the the Parent Borrower and each Guarantor approving and authorizing the execution, 2019delivery and performance of this Amendment and certified as of the Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment and (iv) if available, June 30a good standing certificate from the applicable Governmental Authority of the Parent Borrower’s and each Guarantor’s jurisdiction of incorporation, 2019 and September 30organization or formation, 2019each dated a recent date prior to the Effective Date.
(d) The Administrative Agent and the Amendment No. 1 Lead Arrangers shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, been paid all in form and substance reasonably satisfactory fees payable to the Administrative Agent and its counselthe Amendment No. 1 Lead Arrangers, respectively, on the Effective Date and, to the extent invoiced at least three (3) Business Days prior to the Effective Date (or as otherwise reasonably agreed by the Parent Borrower), out-of-pocket expenses required to be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of Xxxxxx Xxxxxx & Xxxxxxx LLP, in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received a certificate, dated an officer’s certificate with respect to the Restatement Effective Date Parent Borrower and signed by an Authorized Officer the Guarantors in form and substance reasonably satisfactory to the Administrative Agent as to satisfaction of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs clauses (an) and (bo) of this Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)5.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid a Note executed by the Parent Borrower under in favor of each Extended Maturity Term B-1 Lender and Incremental Term B-1 Euro Lender requesting a Note, if any.
(g) [Reserved.]
(h) The Administrative Agent shall have received a notice of prepayment pursuant to Section 2.05(a)(i) of the Existing Credit Agreement with respect to the Non-Extending Term B Dollar Loans and Non-Extending Term B Euro Loans, in accordance with the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 terms of the Existing Credit Agreement.
(gi) Each of the Non-Extending Term B Dollar Loan Prepayment and the Non-Extending Term B Euro Loan Prepayment shall have occurred at or substantially concurrently with the Extension Effective Time and the Incremental Effective Time.
(j) The Borrower Administrative Agent shall have delivered received a Committed Loan Notice with respect to the Administrative Agent, and directly to any Lender requesting Incremental Term B-1 Euro Loans no later than 12:00 p.m. on the same in a written notice to the Borrower at least 10 days Business Day that is three (3) Business Days prior to the Restatement Effective Date, .
(k) The Administrative Agent shall have received a Beneficial Ownership Certification Solvency Certificate from a Responsible Officer of the Parent Borrower in substantially the form attached hereto as Annex C.
(as defined l) The Administrative Agent shall have received the results of searches of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Parent Borrower and each Guarantor in the Restated Credit Agreement) in relation to it state of formation of such Person, together with copies of the financing statements (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations similar documents) disclosed by such search.
(as defined in the Restated Credit Agreement)), in each case at m) At least three (3) Business Days prior to the Restatement Effective Date. The , the Administrative Agent shall notify have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Borrower USA PATRIOT Act that has been requested in writing at least ten (10) Business Days prior to the Effective Date.
(n) The representations and the Lenders warranties of each Loan Party set forth in Article V of the Restatement Credit Agreement and in each other Credit Document shall be true and correct in all material respects on and as of the Effective Date, except to the extent such representations and such notice warranties specifically relate to an earlier date, in which case they shall be conclusive true and bindingcorrect in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(o) Immediately after giving effect to this Amendment and the making of the Incremental Term B-1 Euro Loans on the Effective Date as contemplated by this Amendment, no Default or Event of Default exists.
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Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred as of 9:00 a.m. (New York time) become effective on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in that each case, shall be subject to the satisfaction of the following conditions precedent:
is met (a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) “Amendment Effective Date”): The Administrative Agent shall have received counterparts of (i) this Amendment duly executed legal opinions by the Borrower, the Required Lenders, each Increasing Lender and the Administrative Agent and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of (i) Sxxxxxx Xxxxxxx Xxxxxxx & Bxxxxxxx Xxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit AgreementDocuments, this Agreement Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) . The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) hereby requests such counsel to deliver such opinion. The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated herebyrequest, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) . The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Datedate hereof, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Administrative Agent) required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreementin connection with this Amendment.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be Amendment is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from either (i) counterparts of this Amendment duly executed by the BorrowerCompany, the Term Lenders, the Required Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Agreement and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party Administrative Agent or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed an executed signature page of this AgreementAmendment) that such party has signed a counterpart parties have executed counterparts of this AgreementAmendment.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 1 Effective Date) of (i) Sxxxxxx Xxxxx & Xxxxxxx & Bxxxxxxx LLP, counsel to for the BorrowerCompany, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerCompany, the Restated Amended Credit Agreement, this Agreement and the other Loan Documents and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(c) The Lenders Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements from the Company a certificate, executed by an authorized officer of the Borrower for each quarterly period ended March 31Company, 2019certifying that, June 30immediately before and upon giving effect to the terms of this Amendment and the transactions contemplated hereby, 2019 (i) no Default or Event of Default exists or would result therefrom, (ii) the representations and September 30warranties contained in Article V of the Amended Credit Agreement are (x) with respect to any representations or warranties that contain a materiality qualifier, 2019true and correct in all respects as of the date hereof, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty was true and correct in all material respects as of such earlier date and (y) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of the date hereof, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects on and as of such earlier date, and (iii) the Company is in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenants contained in Section 6.18 of the Amended Credit Agreement, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received a Certificate of the Secretary or an Assistant Secretary of the Company (i) certifying (w) that there have been no changes in the charter document of the Company, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such documents governmental entity, (x) the Operating Agreement or other organizational document, as attached thereto, of the Company as in effect on the date of such certification, (y) resolutions of the Board of Directors or other governing body of the Company authorizing the execution, delivery and certificates as performance of each Loan Document to which it is a party, and (z) the names and true signatures of the incumbent officers of the Company authorized to sign the Loan Documents to which it is a party, and authorized to request an Advance or the issuance of a Facility LC under the Amended Credit Agreement, and (ii) attaching the Good Standing Certificate (or analogous documentation if applicable) for the Company from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, to the extent generally available in such jurisdiction.
(e) To the extent requested 10 days prior to the Amendment No. 1 Effective Date, the Administrative Agent or its counsel may reasonably request relating shall have received, at least five days prior to the organizationAmendment No. 1 Effective Date, existence all documentation and good standing other information regarding the Company and the Guarantors requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(f) To the extent requested 10 days prior to the Amendment No. 1 Effective Date, the Administrative Agent and each requesting Lender shall have received, at least five days prior to the Amendment No. 1 Effective Date, in connection with applicable “beneficial ownership” rules and regulations, a customary certification regarding beneficial ownership or control of the Borrower, and the authorization of the transactions contemplated hereby, all Company in a form and substance reasonably satisfactory to the Administrative Agent and each requesting Lender (it being understood that, upon the execution and delivery by any Lender of its counselsignature page to this Amendment, the condition set forth in this clause (f) shall be deemed to be satisfied as to such Lender).
(eg) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Amendment No. 1 Effective Datefor the account of each Term Lender and the Administrative Agent and its affiliates, including, to the extent invoiced at least two one (21) Business Days Day prior to the Restatement Amendment No. 1 Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Company under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Amended Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower Company and the Lenders of the Restatement Amendment No. 1 Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Plexus Corp)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York timethe “Amendment Effective Date”) on the date which, and only if, each of the following conditions precedent shall have been satisfied (or waived (by the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from the Borrowerreceived, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) in form and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence substance satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page Agent, counterparts of this AgreementAmendment executed by each of the Loan Parties, each of the Extending Lenders, Lenders (including the Extending Lenders) that such party has signed a counterpart of this Agreementconstitute the Required Lenders and the Administrative Agent.
(b) All loans and other obligations owing by the Borrower under the KeyBank 2015 Credit and the Xxxxx Fargo Credit Agreement shall have been, or substantially concurrently with the Amendment Effective Date shall be, paid in full.
(c) Since September 28, 2020 and on or prior to the Amendment Effective Date, the Borrower and its Subsidiaries shall have received Net Cash Proceeds in an aggregate amount of no less than $95,000,000 from one or more Asset Dispositions, issuances of Equity Interests, Debt Issuances (including any issuance of Additional Senior Secured Notes (as defined in Section 1)) and/or other Mandatory Prepayment Events.
(d) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, an amendment to each of the KeyBank 2017 Credit Agreement and the PNC Bank Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as this Amendment or otherwise substantially consistent with the summary of amendment terms previously approved by the Administrative Agent shall be deemed satisfactory.
(e) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of (i) Sxxxxxx Xxxxxx & Xxxxxxx & Bxxxxxxx LLP, counsel to for the Borrower, Borrower and (ii) Dxxxxx Gxxxxxx PLLCthe other Loan Parties and Xxxxxxx LLP, special Michigan Maryland counsel to the BorrowerCompany, in each case case, in form and substance reasonably satisfactory acceptable to the Administrative Agent and covering such other matters relating to the Borrower, the Restated Credit Agreement, Loan Parties and this Agreement and the transactions contemplated hereby Amendment as the Administrative Agent Required Lenders shall reasonably request.
(c) . The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received hereby requests such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)deliver such opinion.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received the following items from the Borrower:
(i) all fees Certificates of good standing for the Borrower and other amounts due the Company from the states of organization of such Person, certified by the appropriate governmental officer and payable on or dated not more than thirty (30) days prior to the Restatement Amendment Effective Date;
(ii) Copies of the formation documents of the Borrower and the Company certified by an officer of such Person, includingtogether with all amendments thereto;
(iii) Incumbency certificates, executed by officers of the Borrower and the Company, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Person, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower; and
(iv) Copies, certified by a Secretary or an Assistant Secretary of the Borrower and the Company 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 Loan Documents to be executed and delivered by such Persons.
(i) The extension fees and the other fees separately agreed by the Administrative Agent and the Borrower, and (ii) to the extent invoiced to the Borrower at least two one (21) Business Days Day prior to the Restatement Amendment Effective Date, reimbursement or payment all of all the reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
Administrative Agent (g) The Borrower shall have delivered to including the reasonable fees and expenses of one firm of counsel for the Administrative Agent, ) due and directly to any Lender requesting payable on the same Amendment Effective Date shall have been paid in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingfull.
Appears in 1 contract
Samples: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Conditions of Effectiveness. The effectiveness of this First Amendment (i) including the provisions of Sections amendments contained in Section 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York timeagreements contained in Section 2) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be are subject to the satisfaction (or written waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the "First Amendment Effective Date"):
(a) The Administrative Agent (or its counsel) This First Amendment shall have received from been duly executed by the BorrowerBorrowers, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Guarantors and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include a copy transmitted by facsimile or other electronic transmission method), and delivered to the Administrative Agent, and the Administrative Agent shall have received Lender Consents from Continuing Term Lenders whose Existing Term Loans, when taken together with the New Term Loan commitment of a signed signature page the New Term Lender, are in an amount equal to the aggregate principal amount of this Agreement) that such party has signed a counterpart of this Agreement.the New Term Loan commitments;
(b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) a favorable opinion of (i) Sxxxxxx Xxxxxxx Wachtell, Lipton, Xxxxx & Bxxxxxxx LLPXxxx, U.S. counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.;
(c) The Lenders Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements a certificate signed by a Responsible Officer of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 as to the matters set forth in paragraph (f) of this Section 3 and September 30, 2019.paragraph (b) of Section 4 below;
(d) The Administrative Agent shall have received a certificate dated as of the First Amendment Effective Date of the secretary or an assistant secretary or director (or such documents and certificates as other officer reasonably acceptable to the Administrative Agent or its counsel may reasonably request relating Agent) of each Loan Party and each European Borrower (to the organizationextent applicable thereto), existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that either (A) attached thereto is a true and complete and up to date copy of the Organizational Documents for such Person, certified as of a recent date by the appropriate Governmental Authority of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification or (B) the Organizational Documents of such Person delivered on the Closing Date to the Administrative Agent have not been amended and its counsel.are in full force and effect, (ii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors or other comparable governing body or bodies of such Person and, if applicable all the holders of the issued shares of such Person, authorizing and approving the execution, delivery and performance of this First Amendment and any related Loan Documents to which it is a party, which are in full force and effect without amendment or supersession as of the date of the certificate, and (iii) either (A) as to the incumbency and genuineness of the signature of each officer, director or other comparable authorized manager or attorney of such Person executing this First Amendment or any of such other Loan Documents or (B) that each of the Persons identified to the Administrative Agent on the Closing Date as a duly elected and qualified officer of such Loan Party or European Borrower continues to be a duly elected and qualified officer of such Loan Party or European Borrower, as applicable, and each such Person is duly authorized to execute and deliver on behalf of such Loan Party or European Borrower, as applicable, the First Amendment and any other Loan Documents, and attaching all such copies of the documents described above;
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer certificate as of a recent date of the Borrowergood standing of each of the Loan Parties and the European Borrowers under the laws of its jurisdiction of organization, confirming compliance, from the appropriate Governmental Authority of such jurisdiction (where available in such jurisdiction);
(f) No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to this Agreement, with the conditions transactions contemplated hereby;
(g) The representations and warranties of each Borrower and each of the Guarantors set forth in paragraphs Section 4 of this First Amendment are true and correct;
(ah) All fees and expenses of Deutsche Bank Securities, Inc. and the Administrative Agent required to be paid or reimbursed pursuant to Section 10.04 of the Credit Agreement shall have been paid in full in cash or will be paid in full in cash on the First Amendment Effective Date;
(i) The Borrowers shall have, substantially concurrently with the effectiveness of this First Amendment, paid to all (x) Non-Consenting Term Lenders all accrued interest, fees and other Obligations (other than principal and all other amounts paid to such Non-Consenting Term Lenders under Section 2 above), if any, to such Non-Consenting Term Lenders under the Credit Agreement and the other Loan Documents (immediately prior to the effectiveness of this First Amendment) and (by) of Section 6.2 of Consenting Term Lenders all accrued interest to such Consenting Term Lenders under the Restated Credit Agreement (includingimmediately prior to the effectiveness of this First Amendment); and
(j) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements of Section 4.01 of the Credit Agreement. Notwithstanding the foregoing, the amendments contained in Section 1(c), Section 1(d) and Section 1(j) are intended to correct jointly identified technical errors, and such amendments will automatically become effective in accordance with Section 10.01 of the Credit Agreement as long as the Required Lenders have not objected in writing to such amendments within five (5) Business Days following receipt of this proposed Amendment (and (x) the initial distribution of this proposed Amendment on August 12, 2016 constituted written notice of the proposed amendments contained in Section 1(d) and Section 1(j) and (y) the distribution of this proposed Amendment on August 18, 2016 constitutes written notice of the proposed amendments contained in Section 1(c), in each case, for purposes of Section 6.2(a)(ii) 10.01 of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent agrees that it shall notify the Borrower and in writing promptly following the end of such periods in the event that the Required Lenders of the Restatement Effective Date, and have objected in writing to such notice shall be conclusive and bindingamendments.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of (i) the provisions of Sections 1 and Section 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, Fifth Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(ai) The Administrative Agent or Banc of America Securities LLC (or its counsel"BAS") shall have received from the BorrowerCompany 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 from the Parent, the Company and each other Loan Party and the Majority Lenders under a duly executed original (or, if elected by the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if anyan executed facsimile copy) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party Fifth Amendment.
(iv) The Agent shall have received in a form to its satisfaction all those items listed in Schedule 1. ----------
(v) The Agent shall have received all other documents it or written evidence the Majority Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent and the Majority Lenders.
(which may include facsimile or other electronic transmission of a signed signature page vi) The representations and warranties in Section 3 of this Agreement) that such party has signed a counterpart Fifth Amendment shall be true and correct on and as of this Agreementthe Effective Date with the same effect as if made on and as of the Effective Date.
(b) The Administrative For purposes of determining compliance with the conditions specified in Section 4(a), each Lender that has executed this Fifth Amendment 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 Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPsuch Lender for consent, counsel approval, acceptance or satisfaction, or required hereunder to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel be consented to the Borrower, in each case in form and substance reasonably or approved by or acceptable or satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestLender.
(c) The Lenders 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 have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 remain unchanged and September 30, 2019in full force and effect and is hereby ratified and confirmed in all respects.
(d) The Administrative Agent shall have received such documents and certificates as will notify the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit AgreementParent, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower Company and the Lenders of the Restatement occurrence of the Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Mail Well Inc)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York timethe “Amendment Effective Date”) on the date which, and only if, each of the following conditions precedent shall have been satisfied (or waived (by the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from the Borrowerreceived, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) in form and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence substance satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page Agent, counterparts of this Agreement) that such party has signed a counterpart Amendment executed by each of this Agreementthe Loan Parties, the Lenders collectively comprising at least the Required Lenders and the Administrative Agent.
(b) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, counterparts of the Intercreditor Agreement executed by each of the parties party thereto.
(c) The Borrower and certain of its Subsidiaries shall have (i) executed and delivered the Pledge Agreement, (ii) made all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created in the Collateral (as defined in the Pledge Agreement) and (iii) delivered to the Collateral Agent certificated securities of each applicable Issuer (as defined in the Pledge Agreement), if any, together with any applicable share powers delivered in blank.
(d) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, a Subsidiary Guaranty executed by each Subsidiary of the Borrower that is a “Pledgor” under the Pledge Agreement.
(e) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, an amendment to the 2018 Term Loan Agreement, it being understood that any such amendment that is in substantially the same form as this Amendment shall be deemed satisfactory.
(f) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx Xxxxxxxx LLP, counsel to for the BorrowerBorrower and the other Loan Parties, covering enforceability of this Agreement and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrowerother Loan Documents, in each case case, in form and substance reasonably satisfactory acceptable to the Administrative Agent and covering such other matters relating to the Borrower, the Restated Credit Agreement, Loan Parties and this Agreement and the transactions contemplated hereby Amendment as the Administrative Agent Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(dg) 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 documents Loan Party, certified by the appropriate governmental officer and certificates as the Administrative Agent or its counsel may reasonably request relating dated not more than thirty (30) days prior to the organizationAmendment Effective Date;
(ii) Copies of the formation documents of each Loan Party certified by an authorized signatory of such Loan Party, existence together with all amendments thereto;
(iii) Incumbency certificates, executed by authorized signatories of each Loan Party, which shall identify by name and good standing 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, and in the authorization case of the transactions contemplated herebyBorrower), all in form and substance reasonably satisfactory to 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 or an authorized signatory of each 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 Loan 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 counselstate of organization.
(ei) The fees provided for in Section 5, (ii) any fees separately agreed by the Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (biii) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced to the Borrower at least two one (21) Business Days Day prior to the Restatement Amendment Effective Date, reimbursement or payment all of all the reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit AgreementAdministrative Agent (including the reasonable fees and expenses of one firm of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(gi) The Borrower Administrative Agent and each Lender shall have delivered to received all documentation and other information about the Loan Parties as shall have been reasonably requested by the Administrative Agent, and directly to any Agent or such Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification five (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (35) Business Days prior to the Restatement Amendment Effective Date 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 Patriot Act to the extent requested by the Administrative Agent at least five (5) Business Days prior to the Amendment Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Taubman Centers Inc)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment No. 1 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the Borrower, the Lenders under the Existing Credit AgreementLenders, the Resigning Administrative Issuing Agent, the Successor Fronting Banks and the Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 1 Effective Date) of (i) Sxxxxxx Xxxxxxx Ropes & Bxxxxxxx Gxxx LLP, counsel to for the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the Borrower, the Restated Credit AgreementLoan Documents, this Agreement and Amendment or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to the Borrower, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that, immediately after giving effect (including giving effect on a pro forma basis) to this Amendment, (i) no Default or Event of Default has occurred and is continuing as of the date hereof and (ii) the representations and warranties of the Borrower set forth in the Credit Agreement are true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
(e) The Administrative Agent shall have received a certificate, dated (i) for the Restatement Effective Date and signed by an Authorized Officer account of the Borrower, confirming compliance, after giving effect each Lender that delivers its executed signature page to this Agreement, with Amendment by no later than the conditions set forth in paragraphs (a) date and (b) of Section 6.2 of time specified by the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicablean upfront fee in an amount equal to the applicable amount previously disclosed to the Lenders and (ii) shall have received (i) all payment of the Administrative Agent’s and its affiliates’ fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by (including the Borrower under the Existing Credit Agreement reasonable fees, charges and the Restated Credit Agreement and (ii) evidence disbursements of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to counsel for the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower connection with this Amendment and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingother Loan Documents.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 1 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent Prior to 1:00 p.m. (or its counselNew York City time) at least three Business Days prior to the Amendment No. 1 Effective Date, the Borrower shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory submitted to the Administrative Agent a prepayment notice pursuant to Section 5.1(a) of the Amended Credit Agreement in respect of the Existing Term Loans.
(b) The Borrower shall have submitted to the Administrative Agent a Notice of Borrowing which may include facsimile or other electronic transmission shall comply with the requirements of a signed signature page Section 2.3(a) of this Agreement) that such party has signed a counterpart of this the Amended Credit Agreement.
(bc) The Administrative Agent shall have received this Amendment, duly executed legal opinions and delivered by (A) the Borrower, (B) each Cashless Option Lender and each Post-Closing Option Lender, (C) the Administrative Agent and (D) each Additional Tranche 1 Term Loan Lender.
(d) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower and (ii) Xxxxxxxx and Wedge, Nevada counsel for the Borrower, in each case, dated the Amendment No. 1 Effective Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the BorrowerLenders, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counselAgent.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer certificate of the BorrowerLoan Parties, confirming compliance, after giving effect substantially in the form of Exhibit G-1 to this the Amended Credit Agreement, with appropriate insertions, executed by the conditions set forth Secretary or any Assistant Secretary of each Loan Party, and attaching the documents referred to in paragraphs clause (ag) and (b) of Section 6.2 of below; provided that the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have hereby acknowledges that it has received (i) all fees and other amounts due and payable on or such certificate prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective DateAmendment No. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.1
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Agreement, and the obligations of (i) the provisions Lenders to make Loans and of Sections 1 the L/C Issuers to issue Letters of Credit shall, shall become effective on and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) the first date on the date which the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentsatisfied:
(a) The Administrative Agent (or its counsel) shall have received (i) from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer party hereto either (if anyA) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party party, or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement., and (ii) duly executed copies of the Loan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit M.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Closing Date) of each of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, U.S. counsel to for the initial Borrowers, (ii) Xxxxxx and Calder (Luxembourg) SARL, special Luxembourg counsel for the Luxembourg Borrower, (iii) XxXxxxxx Xxxxxxx Limited, special UK counsel for the UK Borrower, and (iiiv) Dxxxxx Gxxxxxx PLLCLinklaters LLP, special Michigan counsel advising in respect to certain matters relating to the Dutch Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerBorrowers, the Restated Credit Agreement, this Agreement and Loan Documents or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowerinitial Borrowers, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.counsel and as further described in the list of closing documents attached as Exhibit M.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Effective Closing Date and signed by an Authorized Officer the President or a Vice President of the BorrowerCompany, confirming complianceor a Financial Officer, after giving effect to this Agreement, with the conditions set forth in paragraphs certifying (ai) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, that the representations and warranties set forth contained in Sections 7.4 Article V are true and 7.15 correct in all material respects (or, with respect to representations and warranties that contain a materiality qualification, are true and correct in all respects) as of such date, except to the Restated extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties that contain a materiality qualification, are true and correct in all respects) as of such earlier date, and (ii) that no Default or Event of Default has occurred and is continuing as of such date.
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it that the credit facility evidenced by the Existing Credit Agreement)Agreement shall have been or will be substantially concurrently with the effectiveness of this Agreement terminated and cancelled and all indebtedness thereunder shall have been or will be substantially concurrently with the effectiveness of this Agreement fully repaid and any and all liens thereunder, if any, have been or will be substantially concurrently with the effectiveness of this Agreement terminated and released.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) the Lenders and the Arrangers shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Closing Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit AgreementCompany hereunder.
(g) The Borrower initial Borrowers shall have delivered provided to the Administrative AgentAgent and each Lender the documentation and other customary information reasonably requested by the Administrative Agent or such Lender in order to comply with applicable law, and directly to including the Patriot Act. If any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the initial Borrower qualifies for an express exclusion from the as a “legal entity customer” definition under the Beneficial Ownership Regulations (as defined Regulation, each Lender, to the extent requested by such Lender, shall have received a Beneficial Ownership Certification in relation to such Borrower. Without limiting the Restated Credit Agreement))generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each case at least three (3) Business Days Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Perkinelmer Inc)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the first date the following conditions precedent shall have been satisfied or waived (the “Amendment Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, on which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the BorrowerBorrowers, each of the Lenders under and the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed legal opinions by the Guarantors.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of each of (i) Sxxxxxx Xxxxxx Xxxxx Xxxxxxx & Bxxxxxxx LLP, U.S. counsel to for the BorrowerBorrowers, and (ii) Dxxxxx Gxxxxxx PLLCXxxxxxx, special Michigan Bermuda counsel to for the BorrowerBorrowers, (iii) Stibbe, Dutch counsel for the Borrowers, (iv) Xxxxx & XxXxxxxx Zurich, Swiss counsel for the Borrowers, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the BorrowerBorrowers, the Restated Amended Credit Agreement, this Agreement and Amendment or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request.
(c) . The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019Company hereby requests such counsels to deliver such opinions.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the BorrowerBorrowers, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to the Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Amendment Effective Date and signed by an Authorized the President, a Vice President or a Financial Officer of the BorrowerCompany, confirming compliance, after giving effect to this Agreement, compliance with the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Amended Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent shall have received, to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the date hereof, a Beneficial Ownership Certification in relation to such Borrower.
(or the Resigning g) The Administrative Agent, as applicable) Agent shall have received (i) for the account of each Lender that delivers its executed signature page to this Agreement by no later than the date and time specified by the Administrative Agent, an upfront fee in an amount equal to the applicable amount previously disclosed to the Lenders and (ii) all fees and other amounts due and payable on or prior to the Restatement Amendment Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Company under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Amended Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Cimpress N.V.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and or Section 2 of this Agreement, in each case, Agreement shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from each of the BorrowerBorrowers, the Subsidiary Guarantors, the Lenders under the Existing Credit Agreement, the Resigning Administrative AgentDeparting Lenders, the Successor Additional Term Lenders, the Administrative Agent, each Letter of Credit Issuer (if any) Issuing Bank and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx & Bxxxxxxx Hampton LLP, U.S. counsel to the BorrowerLoan Parties, (ii) K&L Gates LLP, U.K. counsel to the Loan Parties, (iii) Xxxxx & XxXxxxxx Amsterdam N.V., Dutch counsel to the Loan Parties, (iv) Xxxxx & XxXxxxxx Advokatbyra KB, Swedish counsel to the Loan Parties, and (iiv) Dxxxxx Gxxxxxx PLLCXxxxxx X. Xxxxxx, special Michigan internal counsel to the BorrowerLoan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerLoan Parties, the Restated Credit AgreementLoan Documents, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements statement projections through and including the Company’s 2020 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019assumptions used in preparing such projections).
(d) The Administrative Agent shall have received such documents documents, certificates and certificates other deliveries as the Administrative Agent or its counsel may reasonably request and as further set forth on the List of Closing Documents attached as Exhibit B hereto, including, without limitation, relating to the organization, existence and good standing (or the equivalent in the applicable jurisdiction) of the BorrowerLoan Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized a Responsible Officer of the BorrowerCompany, confirming compliancecertifying that, after giving effect to this AgreementAgreement and any Borrowings on the Restatement Effective Date, with (i) all of the conditions representations and warranties of the Company set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement are true and correct in all material respects (including, for purposes or in all respects if the applicable representation and warranty is qualified by materiality or Material Adverse Effect) and (ii) no Default or Event of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations Default has occurred and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)is then continuing.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers under the Existing Credit Agreement and the Restated Credit Agreement Loan Documents and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to . If any Lender requesting the same in a written notice to the Borrower at least 10 days prior to LC Disbursements and/or Swingline Loans are outstanding as of the Restatement Effective Date, such LC Disbursements and/or Swingline Loans shall be repaid, together with any interest accrued thereon. Notwithstanding anything in this Agreement or the Existing Credit Agreement to the contrary, the Borrowers shall not be required to compensate the Lenders pursuant to Section 2.16 of the Existing Credit Agreement for any loss, cost or expense incurred by the Lenders as a Beneficial Ownership Certification (as defined result of the amendment and restatement of the Existing Credit Agreement or the re-evidencing of the Existing Loans, in each case pursuant to the terms of this Agreement and the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the date (New York timethe “Effective Date”) on the date which the following conditions precedent shall have been satisfied (or waived waived):
(i) The Administrative Agents shall have received counterparts of this Amendment executed by the Borrowers, the Lenders, the 2013 Incremental Term Lenders and any Increasing Lenders prior to, 12:00 p.m., New York City time on November 21, 2013 (the “Effective TimeConsent Deadline”)) and ;
(ii) the amendment and restatement of the Existing Credit Agreement pursuant After giving effect to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 Article 5 of the Restated Credit Agreement).Agreement (as amended by this Amendment) are true and correct in all material respects as of the Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and immediately prior to and after giving effect to the Effective Date, no Default or Event of Default shall have occurred and be continuing;
(fiii) The Administrative Agent Agents shall have received a legal opinion of Gibsxx Xxxn & Xrutxxxx XXX, counsel to the Borrower Parties, addressed to the Lender Group and reasonably satisfactory to the Administrative Agents;
(iv) The Administrative Agents shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or the Resigning Administrative Agentits general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Amendment;
(v) The Administrative Agents shall have received a certificate of the secretary or an assistant secretary of the Administrative Borrower confirming compliance with the conditions precedent set forth in clause (ib) of this Section 4; and
(vi) The Borrowers shall have paid all fees reasonable and documented costs and expenses of the Administrative Agents in connection with this Amendment (including the reasonable and documented fees, disbursements and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment charges of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered Shearman & Sterling LLP as counsel to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit AgreementAgents)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 6 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is March 17, in 2016) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment, duly executed and delivered by (i) the Borrower, (ii) Holdings, (iii) the MLP, (iv) Consenting Lenders under constituting the Existing Credit Agreement, Required Lenders and (v) the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 6 Effective Date and addressed to the Administrative Agent and each of the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPLenders, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements (i) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the Borrower for state of organization of each quarterly period ended March 31Credit Party, 2019certificates of resolutions or other action, June 30incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may reasonably require evidencing the identity, 2019 authority and September 30capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, 2019dated as of the Amendment No. 6 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 2(e) and (g) of this Amendment.
(d) The Administrative Agent shall have received such documents and certificates as from the Administrative Agent or its counsel may reasonably request relating Borrower a consent fee payable for the account of each Consenting Lender, in an amount equal to the organization, existence and good standing 0.25% of the Borrower, and the authorization aggregate principal amount of Term Loans held by such Consenting Lender as of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective DateAmendment No. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.6
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Amendment (the “Amendment No. 1 Effective Date”) is subject to the conditions precedent that:
(a) the Administrative Agent shall have received (i) the provisions of Sections 1 and 2 counterparts of this Agreement Amendment duly executed by each Borrower (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on including each Departing UK Borrower), each Affected Term Lender, the date Required Lenders and the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) Administrative Agent and (ii) the amendment Consent and restatement of Reaffirmation attached hereto duly executed by the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.Subsidiary Guarantors;
(b) The the Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 1 Effective Date) of (i) Sxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx & Bxxxxxxx Xxxxxxx LLP, U.S. counsel to the Borrower, Loan Parties and (ii) Dxxxxx Gxxxxxx PLLCXxxxxx X. Xxxxxx, special Michigan internal counsel to the BorrowerLoan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerLoan Parties, the Restated Credit AgreementLoan Documents, this Agreement Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request.. The Company hereby requests such counsel to deliver such opinions;
(c) The Lenders the Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements a certificate signed by a Responsible Officer of the Borrower for each quarterly period ended March 31Company certifying, 2019as of the date hereof and after giving effect to the amendments and transactions contemplated hereby, June 30, 2019 that (i) the conditions set forth in paragraphs (a) and September 30, 2019.(b) of Section 4.02 of the Credit Agreement are satisfied and (ii) the Company is in compliance (on a Pro Forma Basis) with the covenants contained in Section 6.18 of the Credit Agreement;
(d) The the Administrative Agent shall have received such documents other documents, certificates and certificates other deliveries as the Administrative Agent or its counsel may reasonably request request, including, without limitation, relating to the organization, existence and good standing (or the equivalent in the applicable jurisdiction) of the BorrowerCompany, and the authorization of the transactions contemplated herebyhereby and by the Credit Agreement and any other legal matters relating to the Company, the Loan Documents or the transactions contemplated hereby or thereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.;
(e) The the Administrative Agent shall have received (i) a certificate, dated the Restatement Effective Date and signed Borrowing Request executed by an Authorized Officer LKQ Netherlands in respect of the Borrower, confirming compliance, after giving effect Netherlands First Amendment Revolving Loans to this Agreement, with be made on the conditions set forth in paragraphs (a) date hereof and (bii) of Section 6.2 a Borrowing Request executed by the Company in respect of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of Incremental US Term Loans to be made on the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).date hereof;
(f) The the Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Amendment No. 1 Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers under the Existing Credit Agreement and the Restated Credit Agreement Loan Documents and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 in respect of the Existing Credit Agreement.Euro Term Loans; and
(g) The Borrower substantially concurrently with the effectiveness of this Amendment and the funding of the Netherlands First Amendment Revolving Loans and the Incremental US Term Loans on the date hereof, LKQ Netherlands shall have delivered to prepaid (i) the Administrative AgentExisting Euro Term Loans, together with all interest, fees and directly to any Lender requesting other amounts owing in respect thereof, with the same proceeds of the Netherlands First Amendment Revolving Loans and (ii) the Netherlands First Amendment Revolving Loans, together with all interest, fees and other amounts owing in respect thereof, with the proceeds of a written notice to Hedge Agreement entered into by the Borrower at least 10 days prior to Company with the Restatement Effective Dateproceeds of the Incremental US Term Loans. In connection with the foregoing, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify have made such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit exposure under the Borrower Credit Agreement as are necessary in order that each such Lender’s Credit Exposure and outstanding Loans under the Lenders Credit Agreement reflects such Lender’s Applicable Percentage of the Restatement Effective Date, and such notice shall be conclusive and binding.outstanding aggregate Credit Exposures after giving effect to the transactions contemplated hereby on the Amendment No. 1
Appears in 1 contract
Samples: Credit Agreement (LKQ Corp)
Conditions of Effectiveness. The effectiveness of this Waiver is subject to the conditions precedent that (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received counterparts of (x) this Waiver duly executed legal opinions by the Company, the Required Lenders and the Administrative Agent, and (addressed y) the Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Guarantors, (ii) the Company shall have engaged a financial advisor (the “Financial Advisor”) for purposes of providing advice and analysis regarding options for restructuring the Company’s indebtedness, and such financial advisor and the terms of its engagement shall be reasonably satisfactory to the Administrative Agent and the Lenders Required Lenders, (iii) the Company shall have delivered a plan and dated the Restatement Effective Dateforecast (including a projected consolidated balance sheet, income statement and cash flow statement) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPthe Company for each month of the fiscal year of the Company ending March 31, counsel 2013, in form and substance reasonably satisfactory to the BorrowerAdministrative Agent, and (iiiv) Dxxxxx Gxxxxxx PLLC, special Michigan counsel the Company shall have delivered to the BorrowerAdministrative Agent a cash flow projection for the Company for the thirteen-week period beginning March 18, in each case 2012 on a week by week basis, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to (v) the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as payment and/or reimbursement of the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent Agent’s and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date affiliates’ reasonable and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable documented out-of-pocket expenses required (including, to be reimbursed or paid by the Borrower under the Existing Credit Agreement extent invoiced, reasonable fees and the Restated Credit Agreement and (ii) evidence expenses of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to counsel for the Administrative Agent) in connection with this Waiver. For the avoidance of doubt, delivery of executed counterparts of this Waiver by the Required Lenders and directly to any Lender requesting the same in a written notice Administrative Agent to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice Company shall be conclusive evidence that the foregoing conditions precedent have been fully and bindingfinally satisfied or waived, and this Waiver has become effective.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 1 of this Agreement, which shall be deemed to have occurred on Agreement (the “Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, Date”) shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each of the Borrower, the Required Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Agreement and the Swingline Lender 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 AgreementAgreement and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx Xxxxxx & Bxxxxxxx LLPXxxxxx L.L.P., counsel to the BorrowerCredit Parties, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerCredit Parties, the Restated Credit AgreementDocuments, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated herebyrequest, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement Documents and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to . If any Lender requesting the same in a written notice to the Borrower at least 10 days prior to LC Disbursements are outstanding as of the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement))such LC Disbursements shall be repaid, in each case at least three (3) Business Days prior to the Restatement Effective Datetogether with any interest accrued thereon. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Inergy L P)
Conditions of Effectiveness. The effectiveness of (ia) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the date (the “Amendment Effective Date”) that each of the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentsatisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b1) The Administrative Agent shall have received (which may be by electronic transmission), in form and substance satisfactory to the Administrative Agent, a counterpart of this Amendment which shall have been executed legal opinions by the Administrative Agent, the Issuing Bank, the Lenders and the Borrower (addressed which may be by PDF transmission); and
(2) Borrower shall have paid all fees and expenses due to the Lenders and the Administrative Agent (including, but not limited to, reasonable attorneys’ fees of counsel to the Administrative Agent), in each case, for which invoices were submitted at least one (1) Business Day prior to the Amendment Effective Date; and
(3) The Administrative Agent shall be reasonably satisfied that the Borrower has entered into and is party to (x) Hedging Transactions at prices reasonably acceptable to the Administrative Agent and in respect of crude oil on not less than 8,500 barrels per day for the Lenders and dated the Restatement Effective Date) period of January 1, 2021 to December 31, 2021 (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel which shall be apportioned in such period in a manner reasonably acceptable to the Borrower, Administrative Agent); provided that not less than 4,000 of such barrels per day shall be pursuant to Hedging Transactions in the form of commodity swap transactions and (iiy) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to Hedging Transactions in the Borrower, in each case in form and substance of commodity swap transactions at prices reasonably satisfactory acceptable to the Administrative Agent and covering in respect of crude oil on not less than 1,000 barrels per day for the period of January 1, 2022 to December 31, 2022 (which shall be apportioned in such matters relating period in a manner reasonably acceptable to the Borrower, Administrative Agent).
(b) Without limiting the Restated 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 4(a), each Lender that has signed this Agreement Amendment (and the transactions contemplated hereby as its permitted successors and assigns) shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall reasonably requesthave received written notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Amendment Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Ring Energy, Inc.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 4 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is June 26, in 2024), when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from (i) counterparts of this Amendment duly executed and delivered by (A) the BorrowerLoan Parties, (B) the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, (C) each Lender (including each Incremental Lender), L/C Issuer and Swing Line Lender and (D) the Successor Administrative AgentExiting Lender and (ii) a fully executed copy of an amendment to the Relative Rights Agreement, each Letter of Credit Issuer (if any) which shall be in form and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence substance reasonably 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 AgreementAgent.
(b) The Administrative Agent shall have received executed legal opinions a favorable opinion of each of (i) Xxxxxx Xxxxxx LLP, special New York counsel to the Loan Parties, (ii) Bass, Xxxxx & Xxxx PLC, special Tennessee counsel to the Loan Parties and (iii) Xxxxx Law Firm, special New Mexico counsel to the Loan Parties, in each case, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated as of the Lenders Amendment No. 4 Effective Date and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements Receipt by the Administrative Agent of the Borrower for following:
(i) copies of the Organization Documents of each quarterly period ended March 31Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, 2019where applicable, June 30and certified by a secretary or assistant secretary of such Loan Party to be true and correct in all material respects as of the Amendment No. 4 Effective Date (or, 2019 in the alternative, a certification by a Responsible Officer that no modifications to the Organization Documents delivered on the Original Closing Date or thereafter have occurred since such date);
(ii) copies of such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably request prior to the Amendment No. 4 Effective Date evidencing the identity, authority and September 30capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party; and
(iii) copies of such documents and certifications as the Administrative Agent may reasonably request prior to the Amendment No. 4 Effective Date to evidence that each Loan Party is duly organized or formed, 2019and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(d) The Administrative Agent shall have received (i) searches of Uniform Commercial Code filings, tax and judgment liens in the jurisdiction of formation of each Loan Party, the jurisdiction of the chief executive office of each Loan Party where a filing would need to be made in order to perfect the Collateral Agent’s security interest in the Collateral, copies of the financing statements or other liens on file in such documents jurisdictions and certificates as evidence that no Liens exist other than Permitted Liens and Liens to be released substantially concurrently with the consummation of the Transaction, and (ii) searches of ownership of, and Xxxxx on, intellectual property of each Loan Party (in each case, to the extent reasonably requested by the Administrative Agent or its counsel may reasonably request relating to Collateral Agent) in the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counselappropriate governmental offices.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed certificate executed by an Authorized a Responsible Officer of the BorrowerAdministrative Borrower as of the Amendment No. 4 Effective Date, confirming compliance, substantially in the form of Exhibit Q to the ABL Credit Agreement regarding the Solvency of Parent and its Subsidiaries on a consolidated basis and immediately after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 consummation of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of transactions contemplated hereby on the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective DateAmendment No. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.4
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment No. 3 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the Borrower, the Lenders under (including the Existing Credit AgreementNew Lenders and the Departing Lender), the Resigning Administrative AgentIssuing Banks, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to and 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 AgreementAgent.
(b) The Administrative Agent shall have received executed legal favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 3 Effective Date) of (i) Sxxxxxx Xxxxxxx Drinker Xxxxxx & Bxxxxxxx Xxxxx LLP, special New Jersey counsel to for the Borrower, Borrower and (ii) Dxxxxx Gxxxxxx PLLCWeil, Gotshal & Xxxxxx LLP, special Michigan New York counsel to for the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, this Amendment or the Restated Credit Agreement, this Agreement and the transactions contemplated as amended hereby as the Administrative Agent shall reasonably requestrequest (and the Borrower hereby instructs such counsels to deliver such opinions to the Lenders and the Administrative Agent).
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of this Amendment and the transactions contemplated Credit Agreement as amended hereby, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Amendment No. 3 Effective Date and signed by an Authorized the President, a Vice President or a Financial Officer of the Borrower, confirming compliance, after giving effect to this Agreement, compliance with the conditions set forth in paragraphs clauses (a) and (b) of the first sentence of Section 6.2 4.02 of the Restated Credit Agreement (includingexcluding, however, the first parenthetical clause in such clause (a)).
(e) The Administrative Agent shall have received, for purposes the account of Section 6.2(a)(ii) of each Lender (including each New Lender but excluding the Restated Credit AgreementDeparting Lender), an upfront fee in an amount equal to the representations and warranties set forth in Sections 7.4 and 7.15 of amount previously disclosed to the Restated Credit Agreement)Lenders.
(f) The Administrative Agent shall have received payment of the Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (or including the Resigning reasonable fees and expenses of Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent, as applicable) shall have received (i) all fees and other amounts that are due and payable on or prior to the Restatement Amendment No. 3 Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement Date and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice for which an invoice has been presented to the Borrower at least 10 days one Business Day prior to the Restatement Amendment No. 3 Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingconnection with this Amendment.
Appears in 1 contract
Samples: Credit Agreement (Bard C R Inc /Nj/)
Conditions of Effectiveness. The effectiveness This Agreement, and the obligations of (i) the provisions Lenders to make Loans and of Sections 1 the L/C Issuers to issue Letters of Credit shall, shall become effective on and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) the first date on the date which the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentsatisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer party hereto either (if anyi) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party party, or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Closing Date) of each of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, U.S. counsel to for the initial Borrowers, (ii) Xxxxxx and Calder (Luxembourg) S.à x.x., special Luxembourg counsel for the Luxembourg Borrower, (iii) XxXxxxxx Xxxxxxx Limited, special UK counsel for the UK Borrower, and (iiiv) Dxxxxx Gxxxxxx PLLCPlasBossinade, special Michigan Dutch counsel to for the Dutch Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerBorrowers, the Restated Credit Agreement, this Agreement and Loan Documents or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such customary documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, initial Borrowers and the authorization of the transactions contemplated hereby, Transactions all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Effective Closing Date and signed by an Authorized Officer the President or a Vice President of the BorrowerCompany, confirming complianceor a Financial Officer, after giving effect to this Agreement, with the conditions set forth in paragraphs certifying (ai) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, that the representations and warranties set forth contained in Sections 7.4 Article V are true and 7.15 correct in all material respects (or, with respect to representations and warranties that contain a materiality qualification, are true and correct in all respects) as of such date, except to the Restated extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties that contain a materiality qualification, are true and correct in all respects) as of such earlier date, and (ii) that no Default or Event of Default has occurred and is continuing as of such date.
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it that the credit facility evidenced by the Existing Credit Agreement)Agreement shall have been or will be substantially concurrently with the effectiveness of this Agreement terminated and cancelled and all indebtedness thereunder shall have been or will be substantially concurrently with the effectiveness of this Agreement fully repaid and any and all liens thereunder, if any, have been or will be substantially concurrently with the effectiveness of this Agreement terminated and released.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) the Lenders and the Arrangers shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Closing Date, including, to the extent invoiced at least two (2) three Business Days prior to the Restatement Effective Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit AgreementCompany hereunder.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at At least three (3) Business Days prior to the Restatement Effective Closing Date, the initial Borrowers shall have provided to the Administrative Agent and each Lender the documentation and other customary information reasonably requested by the Administrative Agent or such Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. The If any initial Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender, shall have received a Beneficial Ownership Certification in relation to such Borrower. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall notify have received notice from such Lender prior to the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Perkinelmer Inc)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and amendments in Section 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of each of the following conditions precedent:
(a) The Administrative Agent (or its counsel) This Amendment and all documents described on Exhibit A hereto shall have received from been duly executed and delivered by the Borrower, Borrowers and the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) party thereto and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence shall be in form and substance 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.Agent;
(b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPreceived, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering duly executed by the Borrowers, a Note in favor of each Lender requesting a Note and reflecting the Commitment of such matters relating Lender after giving effect to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.Amendment;
(c) The Lenders Agent shall be satisfied with the results of lien searches with respect to the Borrowers and all filings, recordations and searches necessary or desirable (as reasonably determined by the Agent) to reflect the valid and perfected liens and security interests of the Agent shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 been duly made and September 30, 2019.all filing and recording fees and taxes shall have been duly paid;
(d) The Administrative Agent shall have received satisfactory opinions of Xxxxxx Xxxxxxxx LLP and appropriate local counsel, addressed to the Agent and each Lender, as to such matters concerning the Borrowers, this Amendment and the other Loan Documents as the Agent may reasonably request (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of this Amendment);
(e) The Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each member of the BorrowerBorrower Affiliated Group, and the authorization of the transactions contemplated herebyby the Loan Documents and any other legal matters relating to the Borrower Affiliated Group, the Loan Documents or the transactions contemplated thereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.;
(ef) No event shall have occurred that could reasonably be expected to have a Material Adverse Effect;
(g) The Administrative Agent shall have received and be satisfied with updated projections of the Borrowers in form and substance reasonably satisfactory to the Agent;
(h) After giving effect to the consummation of the transactions contemplated on the Second Amendment Effective Date and the Credit Extensions made on the Second Amendment Effective Date, Excess Availability shall not be less than $150,000,000;
(i) The Agent shall have received a certificateBorrowing Base Certificate dated as of November 13, dated the Restatement Effective Date 2017 and signed executed by an Authorized a Financial Officer of the Lead Borrower;
(j) The Borrowers shall have (i) paid all fees then due to the Agent, confirming complianceArrangers and the Lenders, after giving effect to this Agreement(ii) reimbursed the Agent for all costs and expenses, including, reasonable appraisers, auditors, and attorneys’ fees, and (iii) shall have paid all fees in accordance with the conditions set forth in paragraphs (a) and (b) of Section 6.2 terms of the Restated Credit Agreement Fee Letters;
(including, for purposes of Section 6.2(a)(iik) of the Restated Credit Agreement, the The representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).Borrowers contained in Section 4 shall be true and correct; and
(fl) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Datesuch additional documents, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agentinstruments, and directly to any Lender requesting agreements as the same Agent may reasonably request in a written notice to connection with the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingtransactions contemplated hereby.
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Conditions of Effectiveness. (a) The effectiveness of (i) the provisions of Sections 1 and Section 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b1) The Administrative Agent shall have received from the Company and the Required Lenders a duly executed legal opinions original (addressed or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment.
(2) The Administrative Agent shall have received the consent of a number of Subsidiaries of the Company satisfactory to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPAgent, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably 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 and covering such matters shall have received all other documents it or the Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the BorrowerAdministrative Agent.
(4) 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.
(b) For purposes of determining compliance with the conditions specified in Section 4(a), the Restated Credit Agreementeach Lender that has executed this Amendment shall be deemed to have consented to, this Agreement and the transactions contemplated hereby as approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent shall reasonably requestto 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.
(c) The Lenders 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 have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 remain unchanged and September 30, 2019in full force and effect and is hereby ratified and confirmed in all respects.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall will notify the Borrower Company and the Lenders of the Restatement occurrence of the Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of the date (such date, the “Second Amendment Effective Date”) on which the Administrative Agent has received counterparts of (ia) this Amendment executed by Company, the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement Lender party hereto constituting Lender consent required pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness 9.4 of the provisions Credit Agreement (including, for the avoidance of Sections 1 and 2 of this Agreementdoubt, (x) Requisite Lenders in each case, shall be subject to the satisfaction accordance with Section 9.4(a) of the following conditions precedent:
Credit Agreement and (ay) The Administrative Agent (or its counseleach such Lender providing increased commitments pursuant hereto in accordance with Section 9.4(c)(i) shall have received from of the Borrower, the Lenders under the Existing Credit Agreement, ) and the Resigning Administrative Agent, (b) Amendment No. 1 to Asset Purchase Agreement, dated as of the Successor Second Amendment Effective Date, which amends the Asset Purchase Agreement, executed by Company, Holdings, the Lender party thereto and the Administrative Agent, each Letter (c) Amendment No. 1 to Custodial Services Agreement, dated as of Credit Issuer (if any) and the Swingline Second Amendment Effective Date, which amends the Custodial Services Agreement, executed by Company, Holdings, the Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (addressed to thereto, the Administrative Agent and the Lenders and Custodian, (d) the Amended & Restated Fee Letter, dated as of the Restatement Second Amendment Effective Date, which amends and restates the Fee Letter, executed by Company, the Lender party thereto and the Administrative Agent and (e) originally executed copies of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx the favorable written opinions of Xxxx Xxxxxxxx LLP, counsel for Company and Holdings, as to such matters as the BorrowerAdministrative Agent may reasonably request, dated as of the Effective Date and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case otherwise in form and substance reasonably satisfactory to the Administrative Agent (and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated Company hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowerinstructs, and the authorization of the transactions contemplated herebyHoldings shall instruct, all in form such counsel to deliver such opinions to Agents and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit AgreementLenders).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be Amendment is subject to the satisfaction of the following conditions precedent:precedent (the date of such satisfaction, the “Amendment Effective Date”):
(a) The the Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer counterparts (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence reasonably 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 counterpart) of this Agreement.Amendment duly executed by (A) each Loan Party, (B) the Administrative Agent, and (C) the Lenders constituting at least the Required Lenders;
(b) The the Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance or provisions reasonably satisfactory to the Administrative Agent and covering such matters relating shall have been made for the payment of) a non-refundable fee for the account of each Lender party hereto, equal to the Borrower, the Restated Credit Agreement, this Agreement product of 0.25% and the transactions contemplated hereby as sum of (i) such Xxxxxx’s Revolving Commitment and (ii) the Administrative Agent shall reasonably request.principal amount of its outstanding Term Loans, in each case immediately after giving effect to this Amendment on the Amendment Effective Date;
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such collateral and security documents, legal opinions and documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated herebyrelating, all in form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have made such reallocations of each Lender’s Applicable Percentage of the Revolving Credit Exposure under the Amended Credit Agreement as are necessary in order that the Revolving Credit Exposure as of the Amendment Effective Date with respect to such Lender reflects such Xxxxxx’s Applicable Percentage of the Revolving Credit Exposure under the Amended Credit Agreement (it being understood and its counsel.agreed that the Company will not be obligated to compensate any Lender for any losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Loans and the reallocation described in this clause (d) pursuant to Section 2.16 of the Amended Credit Agreement); and
(e) The unless otherwise waived by the Administrative Agent, the Administrative Agent shall have received a certificate, dated (or provisions reasonably satisfactory to the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or shall have been made for the Resigning reimbursement of) the Administrative Agent, as applicable) shall have received (i) all ’s and its Affiliates’ reasonable and documented out-of-pocket fees and other amounts due and payable on or prior to the Restatement Effective Date, expenses (including, to the extent invoiced at least two (2) Business Days prior to in advance of the Restatement Amendment Effective Date, reimbursement or payment reasonable fees and expenses of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to counsel for the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingconnection with this Amendment.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the first date the following conditions precedent shall have been satisfied or waived (the “Amendment Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, on which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the BorrowerBorrowers, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative AgentRequired Lenders, each Letter of Credit Issuer the Lenders increasing their Multicurrency Tranche Commitment or assuming a new Multicurrency Tranche Commitment pursuant to this Amendment (if anythe “Increasing Multicurrency Tranche Commitment Lenders”), each of the Lenders assuming a new Dollar Tranche Commitment pursuant to this Amendment (the “Increasing Dollar Tranche Commitment Lenders”), each of the Lenders providing 2019 CUSA Term Loans on the Amendment Effective Date (the “Incremental Term Lenders”) and the Swingline Lender 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 AgreementAgent.
(b) The Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed legal opinions by the Guarantors.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of each of (i) Sxxxxxx Xxxxxx Xxxxx Xxxxxxx & Bxxxxxxx LLP, U.S. counsel to for the BorrowerBorrowers, and (ii) Dxxxxx Gxxxxxx PLLCXxxxxxx, special Michigan Bermuda counsel to for the BorrowerBorrowers, (iii) Stibbe, Dutch counsel for the Borrowers, (iv) Xxxxx & XxXxxxxx Zurich, Swiss counsel for the Borrowers, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the BorrowerBorrowers, the Restated Amended Credit Agreement, this Agreement and Amendment or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request.
(c) . The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019Company hereby requests such counsels to deliver such opinions.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the BorrowerBorrowers, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to the Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Amendment Effective Date and signed by an Authorized the President, a Vice President or a Financial Officer of the BorrowerCompany, confirming compliance, after giving effect to this Agreement, compliance with the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Amended Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent shall have received, to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the date hereof, a Beneficial Ownership Certification in relation to such Borrower.
(or the Resigning g) The Administrative Agent, as applicable) Agent shall have received (i) for the account of each Increasing Multicurrency Tranche Commitment Lender, each Increasing Dollar Tranche Commitment Lender and each Incremental Term Lender that delivers its executed signature page to this Agreement by no later than the date and time specified by the Administrative Agent, an upfront fee in an amount equal to the applicable amount previously disclosed to such Lenders and (ii) all fees and other amounts due and payable on or prior to the Restatement Amendment Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-out- of-pocket expenses required to be reimbursed or paid by the Borrower Company under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Amended Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Cimpress N.V.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the date (the “Amendment No. 3 Effective Date”) each of the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentsatisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received counterparts of this Amendment duly executed legal and delivered by authorized representatives of each Borrower, each Lender, each New Lender, each Issuing Bank and the Swingline Lender;
(b) the Administrative Agent shall have received the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors;
(c) the Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 3 Effective Date) of (iA) Sxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx & Bxxxxxxx Xxxxxxx LLP, U.S. counsel to the BorrowerLoan Parties, (B) Xxxxx & XxXxxxxx Amsterdam N.V., Dutch counsel to the Loan Parties, (C) Xxxxx & XxXxxxxx Advokatbyra KB, Swedish counsel to the Loan Parties, (D) K&L Gates LLP, U.K. counsel to the Loan Parties, (E) Xxxxx & XxXxxxxx Partnerschaft von Rechtsanwälten Wirtschaftsprüfern und Steuerberatem mbB, German counsel to the Loan Parties, and (iiF) Dxxxxx Gxxxxxx PLLCXxxxxx X. Xxxxxx, special Michigan internal counsel to the BorrowerLoan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerLoan Parties, the Restated Credit AgreementLoan Documents, this Agreement Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) . The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.Company hereby requests such counsel to deliver such opinions;
(d) The the Administrative Agent shall have received a certificate, dated the Amendment No. 3 Effective Date and signed by a Responsible Officer of the Company, certifying that, after giving effect to this Amendment and any Borrowings on the Amendment No. 3 Effective Date, (x) all of the representations and warranties of the Company set forth in the Amended Credit Agreement are true and correct in all material respects (or in all respects if the applicable representation and warranty is qualified by materiality or Material Adverse Effect) and (y) no Default or Event of Default has occurred and is then continuing or would result therefrom;
(e) the Administrative Agent shall have received such documents other documents, certificates and certificates other deliveries as the Administrative Agent or its counsel may reasonably request request, including, without limitation, relating to the organization, existence and good standing (or the equivalent in the applicable jurisdiction) of the BorrowerLoan Parties, and the authorization of the transactions contemplated herebyhereby and by the Amended Credit Agreement and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby or thereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.;
(ef) The each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Amendment No. 3 Effective Date; and
(g) the Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (ix) all fees and other amounts due and payable on or prior to the Restatement Amendment No. 3 Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers under the Existing Credit Agreement and the Restated Credit Agreement and Loan Documents, (iiy) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement.
Agreement and (gz) The Borrower shall have delivered all amounts (if any) owing by the Augmenting Lender and the Increasing Lenders pursuant to Section 2(b). If any LC Disbursements and/or Swingline Loans are outstanding as of the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Signing Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement))such LC Disbursements and/or Swingline Loans shall be repaid, in each case at least three (3) Business Days prior to the Restatement Effective Datetogether with any interest accrued thereon. The Administrative Agent shall notify in writing the Borrower Company and the Lenders of the Restatement Amendment No. 3 Effective Date, and such notice shall be conclusive and binding; provided that, notwithstanding the foregoing, this Amendment shall terminate and be of no force or effect if the foregoing conditions precedent set forth in this Section 3 shall not have been satisfied (or otherwise waived with the consent of the Administrative Agent and the Required Lenders) on or prior to 5:00 p.m. (New York time) on December 31, 2018. The parties hereto agree that, to the extent necessary to effect the amendments contemplated hereby, the Administrative Agent is authorized to make such reallocations, sales, assignments or other relevant actions in respect of, in the case of a “Lender”, its “Commitment” of the applicable Class and “Credit Exposure” in respect of the applicable Class, as are necessary in order that each such Lender’s Credit Exposure in respect of the applicable Class under the Amended Credit Agreement reflects such Lender’s Applicable Percentage thereof on the date hereof after giving effect to this Amendment.
Appears in 1 contract
Samples: Credit Agreement (LKQ Corp)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the date (New York timethe “Effective Date”) on the date which the following conditions precedent shall have been satisfied (or waived waived):
(i) The Administrative Agents shall have received counterparts of this Amendment executed by the “Effective Time”)) Borrowers and the 2016 Incremental Term Facility Lenders;
(ii) the amendment and restatement of the Existing Credit Agreement pursuant After giving effect to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 Article 5 of the Restated Credit Agreement).Agreement (as amended by this Amendment) are true and correct in all material respects as of the Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and immediately prior to and after giving effect to the Effective Date, no Default or Event of Default shall have occurred and be continuing;
(fiii) The Administrative Agent Agents shall have received a legal opinion of Xxxxxx Xxxx & Xxxxxxxx LLP, counsel to the Borrower Parties, addressed to the Administrative Agents and the 2016 Incremental Term Facility Lenders and reasonably satisfactory to the Administrative Agents;
(iv) The Administrative Agents shall have received, with respect to each Borrower, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or the Resigning Administrative Agentits general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Amendment;
(v) The Administrative Agents shall have received (i) all fees and other amounts due and payable on a certificate of the secretary or prior to an assistant secretary of the Restatement Effective Date, including, to Administrative Borrower confirming compliance with the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and conditions precedent set forth in clause (ii) evidence of payment of this Section 4; and
(vi) The Borrowers shall have paid all accrued reasonable and unpaid interest under the Existing Credit Agreement documented costs and all accrued and unpaid fees under Section 4.1 expenses of the Existing Credit Agreement.
Administrative Agents in connection with this Amendment (g) The Borrower shall have delivered including the reasonable and documented fees, disbursements and other charges of Shearman & Sterling LLP as counsel to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit AgreementAgents)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be Amendment is subject to the satisfaction of the following conditions precedentprecedent that:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the BorrowerBorrowers, the Lenders Required Lenders, each Lender with a Term A-2 Loan Commitment under the Existing Amended Credit Agreement, each New Lender and the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed legal opinions by the Subsidiary Guarantors.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of (i) Sxxxxxx Xxxxxxx of Skadden, Arps, Slate, Mxxxxxx & Bxxxxxxx Fxxx LLP, counsel to for the Borrower, Company and (ii) Dxxxxx Gxxxxxx PLLCof Faegre Bxxxx Dxxxxxx LLP, special Michigan Indiana counsel to for the BorrowerCompany, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerCompany, the Restated Credit Agreement, this Agreement Amendment and the transactions contemplated hereby Amended Credit Agreement as the Administrative Agent shall reasonably request.
(c) . The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019Company hereby requests such counsels to deliver such opinions.
(d) The Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the BorrowerCompany, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to the Company, the Amendment and the Amended Credit Agreement, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer payment and/or reimbursement of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all ’s and its affiliates’ fees and other amounts due and payable on or prior to the Restatement Effective Date, expenses (including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment reasonable and documented fees and expenses of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to counsel for the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that accordance with the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Hillenbrand, Inc.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 4 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is March 11, in 2016) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the Lenders under MLP, (C) the Existing Credit Agreement, Consenting Lender and (D) the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 4 Effective Date and addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPConsenting Lender, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) certificates of good standing (to the extent such documents and concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the organizationAmendment No. 4 Effective Date, existence and good standing signed by a Responsible Officer of the Borrower, and the authorization confirming satisfaction of the transactions contemplated hereby, conditions set forth in Sections 2(e) and (f) of this Amendment.
(d) Payment by the Borrower of all in form reasonable fees and substance reasonably satisfactory expenses due to the Administrative Agent and its counselXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Arranger”), including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the legal fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent).
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date representations and signed by an Authorized Officer warranties of the BorrowerBorrower and each other Credit Party contained in Section 8 of the Credit Agreement (as amended hereby) or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 4 Effective Date, confirming complianceexcept to the extent that such representations and warranties specifically refer to an earlier date, after in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) After giving effect to this AgreementAmendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the conditions set forth in paragraphs (aBorrower and each applicable Credit Party) together with a copy of, or certificate as to coverage under, and (b) of a declaration page relating to, the insurance policies required by Section 6.2 9.03 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(iiwithout limitation, flood insurance policies) and the applicable provisions of the Restated Credit AgreementSecurity Documents, the representations and warranties set forth in Sections 7.4 and 7.15 each of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received which (i) all fees and other amounts due and payable on shall be endorsed or prior otherwise amended to the Restatement Effective Dateinclude a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under shall name the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Collateral Agent, on behalf of the Existing Credit Agreement.
Guaranteed Creditors, as additional insured, (giii) The Borrower in the case of flood insurance, shall have delivered (a) identify the address of each property located in a special flood hazard zone, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment No. 4 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the Borrower, the Lenders under the Existing Credit AgreementLenders, the Resigning Administrative AgentIssuing Banks, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to and 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 AgreementAgent.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 4 Effective Date) of (i) Sxxxxxx Xxxxxxx Weil, Gotshal & Bxxxxxxx Xxxxxx LLP, special New York counsel to for the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, this Amendment or the Restated Credit Agreement, this Agreement and the transactions contemplated as amended hereby as the Administrative Agent shall reasonably requestrequest (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of this Amendment and the transactions contemplated Credit Agreement as amended hereby, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Amendment No. 4 Effective Date and signed by an Authorized the President, a Vice President or a Financial Officer of the Borrower, confirming compliance, after giving effect to this Agreement, compliance with the conditions set forth in paragraphs clauses (a) and (b) of the first sentence of Section 6.2 4.02 of the Restated Credit Agreement (includingexcluding, however, the first parenthetical clause in such clause (a)).
(e) The Administrative Agent shall have received, for purposes the account of Section 6.2(a)(ii) of each Lender, an upfront fee in an amount equal to the Restated Credit Agreement, amount previously disclosed to the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)Lenders.
(f) The Administrative Agent shall have received payment of the Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (or including the Resigning reasonable fees and expenses of Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent, as applicable) shall have received (i) all fees and other amounts that are due and payable on or prior to the Restatement Amendment No. 4 Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement Date and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice for which an invoice has been presented to the Borrower at least 10 days one Business Day prior to the Restatement Amendment No. 4 Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingconnection with this Amendment.
Appears in 1 contract
Samples: Credit Agreement (Bard C R Inc /Nj/)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 1 of this Agreement, which shall be deemed to have occurred on Agreement (the “Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be Date”) is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of (i) this Agreement duly executed by the BorrowerBorrowers, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative AgentLenders, each Letter of Credit Issuer (if any) and New Lender, each Issuing Bank, the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to and the Administrative Agent and (which may include facsimile or other electronic transmission of a signed signature page of this Agreementii) that such party has signed a counterpart of this Agreementthe Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received executed legal favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Fried, Frank, Harris, Xxxxxxx & Bxxxxxxx Xxxxxxxx LLP, counsel to for the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLCXxxxxxx LLP, special Michigan Maryland counsel to for the BorrowerLoan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the BorrowerLoan Parties, the Restated Credit Agreement, this Agreement and Loan Documents or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may have reasonably request requested relating to the organization, existence and good standing of the Borrowerinitial Loan Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counselcounsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(d) The Administrative Agent shall have received, for the account of each Lender party hereto that delivers its executed signature page to this Agreement 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 Lenders.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer payment of the Borrower, confirming compliance, after giving effect to this Agreement, with Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the conditions Administrative Agent as set forth in paragraphs (athe Restatement Fee Letter dated as of March 18, 2015 among the Company, JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities LLC) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit in connection with this Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to made such reallocations of each Lender’s Applicable Percentage of the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Revolving Credit Exposure under the Existing Credit Agreement and (including the Restated New Lenders) as are necessary in order that the Revolving Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the Existing Revolving Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in Exposure under the Restated Credit Agreement) . The Company hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in relation to it connection with the sale and assignment of any Eurocurrency Loans and the reallocation described in this clause (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)f), in each case at least three (3) Business Days prior to on the Restatement Effective Dateterms and in the manner set forth in Section 2.16 of the Restated Credit Agreement. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Coach Inc)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 2 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is March 26, in 2014) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Lenders under Guarantors, (D) the Existing Credit AgreementCashless Option Term B-2 Lenders, (E) the Resigning Additional Term B-2 Lender and (F) the Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions a Committed Loan Notice not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the Amendment No. 2 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the First Lien Collateral Agent and the Lenders, an opinion from Ropes & Xxxx LLP, New York counsel for the Loan Parties, dated the Amendment No. 2 Effective Date and addressed to the Administrative Agent, the First Lien Collateral Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPLenders, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019Agent.
(d) The Administrative Agent shall have received such documents and (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to the organization, existence act as a Responsible Officer in connection with this Amendment and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ey) The Administrative Agent shall have received a certificate, dated as of the Restatement Amendment No. 2 Effective Date and Date, signed by an Authorized a Responsible Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with (i) satisfaction of the conditions set forth in paragraphs (aSections 3(f) and (bg) of and (ii) that the Term B-2 Loans meet the requirements and conditions to the Other Term Loans under Section 6.2 2.15 of the Restated Credit Agreement and related definitions thereunder (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreementwithout limitation, the representations and warranties set forth in Sections 7.4 and 7.15 definition of the Restated “Credit AgreementAgreement Refinancing Indebtedness”).
(fe) The Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (or as agreed to in writing between the Resigning Administrative AgentAgent and/or the Arrangers and the Borrower), as applicable) shall have received (i) all fees in each case required to be paid on the Amendment No. 2 Effective Date and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Amendment No. 2 Effective Date. The Administrative Agent Substantially simultaneous with effectiveness, the Term Lenders (including all Cashless Option Term B-2 Lenders but excluding the Additional Term B-2 Lender in its capacity as such) under the existing Credit Agreement shall notify have been paid all accrued principal (other than the Borrower principal amount of Converted Term B-1 Loans) and interest on their Term B-1 Loans to, but not including, the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.Amendment No. 2
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment No. 1 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the Borrower, the Required Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, (including each Letter of Credit Issuer existing Lender (if any) and whose Commitment is increasing pursuant to the terms of this Amendment), the New Lenders, the Issuing Bank, the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to and 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 AgreementAgent.
(b) The Administrative Agent shall have received executed legal a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 1 Effective Date) of (i) Sxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx & Bxxxxxxx LLPXxxxxx, P.C., special financing counsel to for the Borrower, Borrower and (ii) Dxxxxx Gxxxxxx PLLCSkadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special Michigan securities counsel to for the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the Borrower, the Restated Credit AgreementLoan Documents, this Agreement and Amendment or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) a certificate signed by a Financial Officer of the Borrower certifying that, after giving effect to this Amendment, (A) the Borrower is in compliance (on a pro forma basis assuming the increased Commitments have been fully drawn as Revolving Loans) with the covenants contained in Section 6.05 of the Credit Agreement for the fiscal quarter ended October 30, 2015, (B) the representations and warranties of the Borrower set forth in the Credit Agreement (as amended by this Amendment) (other than the representations and warranties contained in Section 3.04(b) and Section 3.06(a)) are true and correct in all material respects (except that any representation and warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the date of such certificate; except, in each case, to the extent any such representation or warranty specifically refers to an earlier date, in which case it shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of such earlier date, and (C) no Default or Event of Default has occurred and is continuing, and (ii) such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to the Borrower, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received (i) for the account of each Lender participating in the increase to the Commitments pursuant hereto (including each New 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 applicable amount previously disclosed to the Lenders and (ii) payment of the Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment and the other Loan Documents.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer made such reallocations of each Lender’s Applicable Percentage of the BorrowerRevolving 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, confirming compliance, after giving effect to this Agreement, costs and expenses incurred by such Lender in connection with the conditions set forth in paragraphs (a) sale and (b) assignment of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement any Eurocurrency Loans and the Restated Credit Agreement and reallocation described in this clause (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)e), in each case at least three (3) Business Days prior to on the Restatement Effective Date. The Administrative Agent shall notify terms and in the Borrower and the Lenders manner set forth in Section 2.16 of the Restatement Effective Date, and such notice shall be conclusive and bindingCredit Agreement.
Appears in 1 contract
Samples: Credit Agreement (NetApp, Inc.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the date (such date being referred to as the “First Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentsatisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer party hereto either (if anyi) and the Swingline Lender either a counterpart of this Agreement Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic image scan transmission of a signed signature page of this AgreementAmendment) that such party has signed a counterpart of this AgreementAmendment.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement First Amendment Effective Date) of (i) Sxxxxxx Xxxxxxx Fenwick & Bxxxxxxx West LLP, counsel to for the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Borrower, this Amendment, the Restated Credit Agreement, this Agreement and other Loan Documents or the transactions contemplated hereby by this Amendment and the other Loan Documents as the Administrative Agent or the Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated herebyhereby and any other legal matters relating to the Borrower, this Amendment, the other Loan Documents or the transactions contemplated hereby and by the other Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement First Amendment Effective Date and signed on behalf of the Borrower by an Authorized the President, a Vice President or a Financial Officer of the Borrower, confirming compliance, after giving effect to this Agreement, compliance with the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.2 of the Restated Credit Agreement Agreement.
(includinge) The Administrative Agent shall have received a certificate of each Guarantor, for purposes executed on behalf of Section 6.2(a)(ii) such Guarantor, certifying to the continuing full force and effect, both immediately before and after the First Amendment Effective Date, of the Restated Credit Agreement, the Guaranty.
(f) The representations and warranties set forth in Sections 7.4 Article IV shall be true and 7.15 correct on and as of the Restated Credit Agreement)First Amendment Effective Date.
(fg) No Default shall have occurred and be continuing both immediately before and after the First Amendment Effective Date.
(h) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all accrued and unpaid interest and fees owing to the Exiting Lenders and Continuing Lenders as of the First Amendment Effective Date and (ii) all fees and other amounts due and payable on or prior to the Restatement First Amendment Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any of the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement, under this Amendment or under any other Loan Document.
(gi) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify have received such documentation and information as is reasonably requested by any Lender about the Borrower and the Lenders Guarantors in respect of applicable “know your customer” and anti-money laundering rules and regulations, including the Restatement Effective Date, and such notice shall be conclusive and bindingUSA PATRIOT Act.
Appears in 1 contract
Samples: Credit Agreement (Symantec Corp)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment No. 1 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of (i) this Amendment duly executed by the BorrowerBorrowers, the Lenders under Required Lenders, each Revolving Lender increasing its Revolving Commitment pursuant to this Amendment, each 2015 Term Lender (as defined in the Existing Amended Credit Agreement), each New Lender, the Resigning Administrative AgentIssuing Bank, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to and the Administrative Agent and (which may include facsimile or other electronic transmission of a signed signature page of this Agreementii) that such party has signed a counterpart of this Agreementthe Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received executed legal favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment No. 1 Effective Date) of (i) Sxxxxxx Fried, Frank, Harris, Xxxxxxx & Bxxxxxxx Xxxxxxxx LLP, counsel to for the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLCthe General Counsel of the Company, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the BorrowerLoan Parties, the Restated Credit AgreementLoan Documents, this Agreement and Amendment or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) a certificate signed by the Chief Executive Officer, a Vice President or a Financial Officer of the Company certifying that, after giving effect to this Amendment, the Company is in compliance with the covenants contained in Section 6.07 of the Credit Agreement and (ii) such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the BorrowerLoan Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, 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 applicable 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 disclosed to the Lenders.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer payment of the BorrowerAdministrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsels for the Administrative Agent) in connection with this Amendment and the other Loan Documents, confirming compliance, after giving effect and for which invoices have been presented at least one (1) Business Day prior to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)Amendment No. 1 Effective Date.
(f) The Administrative Agent shall have administered such reallocations, sales, assignments, transfers (or other relevant actions in respect) of each Lender’s Applicable Percentage of the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment relevant Class of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Credit Exposure under the Existing Credit Agreement (including the New Lenders) as are necessary in order that each relevant Class of Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of such Class of Credit Exposure under the Credit Agreement as amended hereby. The Company 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 Restated Credit Agreement and reallocation described in this clause (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)f), in each case at least three (3) Business Days prior to on the Restatement Effective Date. The Administrative Agent shall notify terms and in the Borrower and the Lenders manner set forth in Section 2.16 of the Restatement Effective Date, and such notice shall be conclusive and bindingCredit Agreement.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be Second Amendment is subject to the satisfaction (or written waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) The Administrative Agent (or its counsel) This Second Amendment shall have received from been duly executed by the BorrowerRevolving Borrowers, the Lenders under the Existing Credit AgreementLoan Parties, the Resigning Administrative Agent, the Successor Administrative AgentSwingline Lender, each Letter of Credit Issuer (if any) the 2023 Incremental Revolving Lenders and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory Revolving Lenders constituting the Required Revolving Lenders, and delivered 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.Agent;
(b) The Administrative Agent shall have received executed legal opinions (i) a customary written opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, New York counsel for the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent, (ii) a capacity and authority opinion of A&L Goodbody LLP, Irish counsel for the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent, (iii) an enforceability opinion of Xxxxxxxx LLP, Irish counsel for the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent, (iv) a capacity opinion of Xxxxxx & Loeff Luxembourg S.à x.x., Luxembourg counsel for the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent, (v) an enforceability opinion of NautaDutilh Avocats Luxembourg S.à x.x., Luxembourg counsel for the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent, and (vi) a written opinion of XxXxxxx Xxxxx LLP, Virginia counsel for the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent, in each case (A) dated the Second Amendment Effective Date, (B) addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) Lenders, and, in each case, each of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrowertheir permitted assigns, and (iiC) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form Revolving Borrower and substance reasonably satisfactory to each other Loan Party and the Administrative Agent and covering hereby request such matters relating counsel to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.deliver such opinions;
(c) The Lenders Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements a certificate dated the Second Amendment Effective Date executed by a Responsible Officer of Holdings confirming compliance with the Borrower for each quarterly period ended March 31conditions set forth in clauses (e), 2019, June 30, 2019 (f) and September 30, 2019.(g) of this Section 3;
(d) The Administrative Agent shall have received such documents (i) a copy of the certificate of incorporation, memorandum of association or articles of incorporation or association and all applicable, if any, certificates of incorporation on a change of name or certificates of re-registration or other formation documents, including all amendments thereto, of each Loan Party as of the Administrative Agent Second Amendment Effective Date, certified as of a recent date by the Secretary of State of the state of its organization in the case of a corporation incorporated in the United States, and a certificate as to or its counsel may reasonably request relating to of compliance evidencing the organization, existence and good standing of each such Loan Party as of a recent date, from such Secretary of State in the Borrowercase of a corporation incorporated in the United States; (ii) a certificate of the secretary or assistant secretary, manager or director of each Loan Party as of the Second Amendment Effective Date dated the Second Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or similar governing documentation) of such Loan Party as in effect on the Second Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of such Loan Party authorizing the execution, delivery and performance of the Second Amendment and other agreement related to or contemplated hereby to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) if applicable, that the authorization certificate or articles of incorporation or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above or where a certificate of good standing is not applicable in its jurisdiction of incorporation that attach a true, up to date and correct copy of the certificate or articles of incorporation or other formation documents of each Loan Party duly certified as being true, up to date and correct and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary (or manager or director, if applicable) executing the certificate pursuant to clause (ii) above; and (iv) with respect to any Loan Party incorporated in Luxembourg (A) an electronic copy of an excerpt (extrait) issued by the Luxembourg Register of Commerce and Companies dated as of the Second Amendment Effective Date; (B) an electronic copy of a certificate of non-registration of a judicial decision or of an administrative dissolution without liquidation (certificat de non-inscription d'une décision judiciare ou de dissolution administrative sans liquidation) issued by the Luxembourg Register of Commerce and Companies on the Second Amendment Effective Date, stating that as of the date prior to the Second Amendment Effective Date, no judicial decision pursuant to which the Company would be subject to one of the judicial proceedings referred to therein including, but not limited to, bankruptcy (faillite), controlled management (gestion contrôlée), reprieve from payments (sursis de paiement), composition with creditors (concordat préventif de la faillite) or judicial liquidation (liquidation judiciaire), has been registered with the Luxembourg register of commerce and companies by application of article 13, items 4 to 12 and items 16 and 17 of the Luxembourg law of 19 December 2002 on the Luxembourg register of commerce and companies and on the accounting and annual accounts of undertakings, as amended; (C) a confirmation that such Loan Party is renting its premises; (D) confirmation that borrowing or guaranteeing or securing, as appropriate, by the entry by the Loan Party into the Loan Documents would not cause any borrowing, guarantee, security or similar limit binding on such Loan Party to be exceeded and (E) a confirmation that each copy document relating to such Loan Party is correct, complete and in full force and effect as at the date no earlier than the Second Amendment Effective Date;
(e) No Event of Default shall exist on the Second Amendment Effective Date both immediately before and after giving effect to the 2023 Incremental Revolving Commitments and the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).;
(f) The Administrative Agent representations and warranties of the Loan Parties set forth in this Second Amendment shall be true and correct in all material respects (or, if qualified as to “materiality” or “Material Adverse Effect”, in all respects) on and as of the Resigning Administrative Agent, as applicable) shall have received (i) all fees Second Amendment Effective Date both immediately before and other amounts due and payable on or prior after giving effect to the Restatement Effective Date, including, 2023 Incremental Revolving Commitments and the transactions contemplated hereby; provided that to the extent invoiced at least two that a representation and warranty expressly relates to an earlier date, it shall be true and correct in all material respects (2or, if qualified by materiality or “Material Adverse Effect”, in all respects) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.on such earlier date;
(g) The Borrower shall have delivered Revolving Commitment Increase does not exceed the maximum amount of Incremental Commitments permitted to be established pursuant to Section 2.20(d) of the Administrative Agent, and directly to any Lender requesting Credit Agreement on the same in a written notice to Second Amendment Effective Date;
(h) To the Borrower extent requested at least 10 business days prior to the Restatement Second Amendment Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “legal entity know-your-customer” definition under and anti-money laundering rules and regulations, including the Beneficial Ownership Regulations (as defined in Patriot Act and, if applicable, the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.requirements of
Appears in 1 contract
Samples: Credit Agreement (Icon PLC)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the Borrower, the Lenders under and the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPXxxxx X. Xxxx, Executive Vice President, General Counsel and Secretary of the Company and acting as counsel to the Borrower, other Borrower and (ii) Dxxxxx Gxxxxxx PLLCXxxxxxxxxx Xxxxxx & Xxxxxxx LLP, special Michigan New York counsel to for the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerBorrowers, this Amendment, the Restated Credit Agreement, this Agreement as amended hereby and the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably requestrequest (and the Borrower hereby requests such counsel to deliver such opinions).
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to (i) the organization, existence and good standing of the each Borrower, and (ii) the authorization of the transactions contemplated herebyTransactions and the validity of this Amendment and the Credit Agreement as amended hereby and (iii) any other legal matters relating to Borrowers, this Amendment and the Credit Agreement as amended hereby or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Amendment Effective Date and signed by an Authorized Officer the chief executive officer or the chief financial officer or the controller of the Borrower, Company confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (ai) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, that the representations and warranties of the Borrowers set forth in Sections 7.4 and 7.15 Article 4 of the Restated Credit Agreement (as such Article 4 is modified by this Amendment) are true and correct in all material respects (provided that any representation or warranty qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of the Amendment Effective Date except to the extent that any such representations and warranties expressly relate to an earlier date (including those contained in Sections 4.4(a), 4.4(b) and 4.8 of the Credit Agreement), in which case such representations and warranties shall have been true and correct in all material respects (provided that any representation or warranty qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of such earlier date and (ii) that there is no Default in existence as of the Amendment Effective Date.
(e) 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 extension fee in an amount equal to the amount disclosed by the Borrowers to the Lenders in writing prior to the date hereof.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all payment of the Administrative Agent’s and its Affiliates’ fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket costs and expenses required to be reimbursed or paid by (including the Borrower under the Existing Credit Agreement reasonable fees, charges and the Restated Credit Agreement and (ii) evidence disbursements of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered Sidley Austin LLP, counsel to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingconnection with this Amendment.
Appears in 1 contract
Samples: Credit Agreement (Allstate Corp)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 1 of this Agreement, which Agreement shall be deemed to have occurred on become effective as of the first date (the “Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in Date”) on which each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit AgreementRequired Lenders, each 2020 Dollar Tranche Lender, each 2020 Multicurrency Tranche Lender, the Resigning Administrative AgentSwingline Lender, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Issuing Bank and the Swingline Lender Administrative Agent 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.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders under the Restated Credit Agreement and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx & Bxxxxxxx LLPXxxxxx, P.C., counsel to for the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the BorrowerLoan Parties, the Restated Credit AgreementLoan Documents, this Agreement and or the transactions contemplated hereby Transactions as the Administrative Agent shall have reasonably requestrequested. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may have reasonably request requested relating to the organization, existence and good standing of the Borrowerinitial Loan Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counselcounsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(d) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Borrower has repaid in full in Dollars all outstanding Term Loans, together with accrued interest to the extent required by Section 2.13 of the Existing Credit Agreement, break funding payments (if any) pursuant to Section 2.16 of the Existing Credit Agreement and all other outstanding Obligations owing in respect of the Term Loans.
(e) The Administrative Agent shall have received a certificate, dated (i) for the Restatement Effective Date and signed by an Authorized Officer account of the Borrower, confirming compliance, after giving effect each 2020 Revolving Lender party hereto that delivers its executed signature page to this Agreement, with Agreement by no later than the conditions set forth in paragraphs (a) date and (b) of Section 6.2 of time specified by the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicablean upfront fee in an amount equal to the amount previously disclosed to the Lenders and (ii) shall have received (i) all payment of the Administrative Agent’s and its affiliates’ fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Agreement and the other Loan Documents. The Administrative Agent and the Lenders waive any prior written notice required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and or the Restated Credit Agreement in respect of (x) the prepayment of the Term Loans contemplated by Section 3(d) above and (iiy) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 any prepayment of the Existing Credit Agreement.
(g) The Borrower shall have delivered to Revolving Loans being effected on the Administrative Agent, and directly to any Lender requesting Restatement Effective Date. Upon the same in a written notice to the Borrower at least 10 days prior to occurrence of the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall become effective when, and only when, the Lender shall have received each of the following which, in the case of documents, shall be in form and substance satisfactory to the Lender and dated the date hereof or as of an earlier date acceptable to the Lender:
(i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory Amendment, Authenticated by the Borrower;
(ii) an amendment to the Administrative Agent Security Agreement, in substantially the form of Exhibit A hereto, Authenticated by the Xxxxxx Subsidiaries;
(which iii) an amendment and joinder to the Guaranty, in substantially the form of Exhibit B hereto, Authenticated by the Xxxxxx Subsidiaries;
(iv) a joinder to the Loan Agreement, in substantially the form of Exhibit C hereto, Authenticated by AHS;
(v) an amended and restated promissory note in the maximum principal amount of $7,000,000, in substantially the form of Exhibit D hereto, Authenticated by Xxxxxx Xxxxxx and AHS;
(vi) a certificate of an officer or the managing member, as the case may include facsimile or other electronic transmission be, of a signed signature page each of this AgreementXxxxxx Xxxxxx and AHS certifying (A) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent attached thereto are true and the Lenders and dated the Restatement Effective Date) complete copies of (iI) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPits certificate of incorporation or formation, counsel to as the Borrowercase may be, (II) its bylaws or limited liability company agreement, as the case may be, and (iiIII) Dxxxxx Gxxxxxx PLLCthe resolutions or a unanimous written consent of its board of directors or its managers, special Michigan as the case may be, authorizing the execution, delivery and performance of this Amendment and the other agreements, instruments and documents delivered in connection herewith to which Xxxxxx Xxxxxx or AHS, respectively, is a party and (B) the incumbency, names and true signatures of the officers or managers, as the case may be, of Xxxxxx Xxxxxx or AHS authorized to sign this Amendment and the other agreements, instruments and documents delivered in connection herewith to which the Xxxxxx Xxxxxx or AHS is a party;
(vii) evidence that the Borrower has delivered a copy of this Amendment to SWK Funding LLC (“SWK”) pursuant to Section 6.1.10 of the Credit Agreement dated as of April 17, 2015 between the Borrower and SWK;
(viii) an opinion of counsel to the BorrowerAHS, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.Lender; and
(cix) The Lenders shall have received satisfactory unaudited interim consolidated financial statements payment of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 costs and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement expenses (including, for purposes of Section 6.2(a)(iiwithout limitation, attorneys’ fees) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid incurred by the Borrower under Lender in connection with the Existing Credit Agreement preparation, execution and delivery of this Amendment and the Restated Credit Agreement agreements, instruments and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreementdocuments delivered in connection herewith.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred as of 9:00 a.m. (New York time) become effective on the date the following conditions precedent shall have been satisfied or waived (the “Amendment No. 17 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentwhich:
(a) The the Administrative Agent (or its counsel) shall have received from a counterpart signature page of this Amendment duly executed by (i) the BorrowerCompany, (ii) the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, (iii) the Successor Administrative AgentLenders, each Letter and (iv) the Issuing Bank or, as to any of Credit Issuer (if any) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or foregoing parties, written evidence reasonably 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 executed this Agreement.Amendment;
(b) The the Administrative Agent shall have received one or more counterparts of the Fee Letter Amendment No. 17, dated as of the date hereof, duly executed legal opinions by the Company and Citicorp USA, Inc.;
(c) the representations and warranties set forth in Section 4 of this Amendment shall be true and correct in all respects;
(d) the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent Agent, the Issuing Bank and the Lenders and dated the Restatement 2 Amendment No. 17 to Credit Agreement Amendment No. 17 Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPXxxx X. Xxxxxxx, counsel to Senior Vice President, General Counsel and Secretary of the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the BorrowerCompany, in each case in a form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating (ii) Xxxxx Day, in a form reasonably satisfactory to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.Agent;
(ce) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, organization and existence and good standing of the BorrowerCompany, and the authorization of this Amendment and the transactions contemplated herebyrelated transactions, the incumbency of the persons executing this Amendment on behalf of the Company, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).Agent; and
(f) The the Administrative Agent and each Lender (or the Resigning Administrative Agent, as applicableand its Affiliates) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Amendment No. 17 Effective Date, including, to the extent invoiced at least two one (21) Business Days Day prior to the Restatement Amendment No. 17 Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Company under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 3 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from (i) counterparts of this Amendment signed by the BorrowerBorrowers, the Lenders under the Existing Credit AgreementGuarantors, the Resigning Administrative Agent, the Successor Administrative AgentL/C Issuer, each Letter of Credit Issuer (if any) the Swing Line Lender and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to Incremental Revolving Credit Lenders and (ii) 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 AgreementSwiss Reaffirmation duly executed and delivered by the Swiss Guarantors.
(b) The Administrative Agent shall have received executed (w) the legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) opinion of (i) Sxxxxxx Xxxxxxx Ropes & Bxxxxxxx Xxxx LLP, counsel to the BorrowerLoan Parties, (x) the legal opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., North Carolina counsel to the Loan Parties, (y) the legal opinion of Xxxx & Staehelin, Swiss counsel for the Amendment No. 3 Lead Arranger, and (iiz) Dxxxxx Gxxxxxx PLLCthe legal opinion of Nagashima Ohno & Tsunematsu, special Michigan Japanese counsel to for the BorrowerLoan Parties, in each case case, dated as of the Amendment No. 3 Effective Date and in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements (i) copies of each Organization Document for each Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 3 Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of each Borrower for and each quarterly period ended March 31Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of each Borrower and each Guarantor approving and authorizing the execution, 2019delivery and performance of this Amendment and certified as of the Amendment No. 3 Effective Date by its secretary, June 30an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, 2019 a good standing certificate from the applicable Governmental Authority of each Borrower’s and September 30each Guarantor’s jurisdiction of incorporation, 2019organization or formation, each dated a recent date prior to the Amendment No. 3 Effective Date.
(d) The Administrative Agent and the Amendment No. 3 Lead Arranger shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, been paid all in form and substance reasonably satisfactory fees payable to the Administrative Agent and its counselthe Amendment No. 3 Lead Arranger, respectively, on the Amendment No. 3 Effective Date and, to the extent invoiced at least three (3) Business Days prior to the Amendment No. 3 Effective Date (or as otherwise reasonably agreed by the Parent Borrower), out-of-pocket expenses required to be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of Xxxxxx Xxxxxx & Xxxxxxx LLP, in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received a certificate, dated an officer’s certificate with respect to the Restatement Effective Date Borrowers and signed by an Authorized Officer the Guarantors in form and substance reasonably satisfactory to the Administrative Agent as to satisfaction of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs clauses (aj) and (bk) of this Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)4.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to To the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case requested at least three (3) Business Days prior to the Restatement Amendment No. 3 Effective Date. Date (or as otherwise reasonably agreed by the Parent Borrower), the Administrative Agent shall have received a Note executed by the applicable Borrower in favor of each Incremental Revolving Credit Lender requesting a Note, if any.
(g) The Administrative Agent shall notify have received for the Borrower and the Lenders account of each Incremental Revolving Credit Lender a fee payable in Dollars equal to 0.25% of the Restatement Effective Date, and such notice shall be conclusive and binding.aggregate
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 1 of this Agreement, which Agreement shall be deemed to have occurred on become effective as of the first date (the “Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in Date”) on which each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received (i) from each of the BorrowerBorrowers, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative AgentRequired Lenders, each Letter of Credit Issuer (if any) 2018 Revolving Lender and the Swingline each Term Lender 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) duly executed copies of the Loan Documents and such other legal opinions, certificates, documents, instruments and agreements in respect of the Loan Parties as the Administrative Agent shall have reasonably requested in connection with the Transactions, all in form and substance satisfactory to the Company and Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders under the Restated Credit Agreement and dated the Restatement Effective Date) of each of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx Procter LLP, U.S. counsel for the Loan Parties, substantially in the form of Exhibit B-1 to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this (ii) Xxxxxxx, Bermuda counsel for the Loan Parties, substantially in the form of Exhibit B-2 to the Restated Credit Agreement, (iii) Stibbe, Dutch counsel for the Loan Parties, substantially in the form of Exhibit B-3 to the Restated Credit Agreement, (iv) Xxxxx & XxXxxxxx Zurich, Swiss counsel for the Loan Parties, substantially in the form of Exhibit B-4 to the Restated Credit Agreement, (v) Xxxxxxx Xxx, Australian counsel for the Loan Parties, substantially in the form of Exhibit B-5 to the Restated Credit Agreement and (vi) Xxxxxxx XxXxxxxx Stirling Scales, Nova Scotia counsel for the transactions contemplated hereby Loan Parties, substantially in the form of Exhibit B-6 to the Restated Credit Agreement, and in each case covering such other matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent shall have reasonably requestrequested. The Company hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory (i) audited consolidated financial statements of the Parent for the two most recent fiscal years ended prior to the Restatement Effective Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Borrower Parent for each quarterly period ended March 31subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are publicly available and (iii) financial statement projections through and including the Parent’s 2017 fiscal year, 2019together with such information as the Administrative Agent and the Lenders shall have reasonably requested (including, June 30without limitation, 2019 and September 30, 2019a reasonably detailed description of the assumptions used in preparing such projections).
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may have reasonably request requested relating to the organization, existence and good standing of the Borrowerinitial Loan Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counselcounsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized the President, a Vice President or a Financial Officer of the BorrowerCompany, confirming compliance, after giving effect to this Agreement, compliance with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) 4.02 of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the initial Loans under the Restated Credit Agreement, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (iother than contingent indemnity obligations). If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon.
(g) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Company under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence Agreement. Upon the occurrence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Vistaprint N.V.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 2 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is March 12, in 2015) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the Lenders under MLP, (C) the Existing Credit Agreement, Consenting Lender and (D) the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 2 Effective Date and addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPConsenting Lender, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) certificates of good standing (to the extent such documents and concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the organizationAmendment No. 2 Effective Date, existence and good standing signed by a Responsible Officer of the Borrower, and the authorization confirming satisfaction of the transactions contemplated hereby, conditions set forth in Sections 2(e) and (f) of this Amendment.
(d) Payment of all in form reasonable fees and substance reasonably satisfactory expenses due to the Administrative Agent and its counselXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower).
(e) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 2 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) No Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) The Administrative Agent shall have received from the Borrower a certificate, dated consent fee payable for the Restatement Effective Date and signed by an Authorized Officer account of the BorrowerConsenting Lender, confirming compliance, after giving effect in an amount equal to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 0.25% of the Restated aggregate principal amount of Commitments held by the Consenting Lender as of the Amendment No. 2 Effective Date.
(h) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable Credit Party) together with a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 9.03 of the Credit Agreement (including, for purposes of Section 6.2(a)(iiwithout limitation, flood insurance policies) and the applicable provisions of the Restated Credit AgreementSecurity Documents, the representations and warranties set forth in Sections 7.4 and 7.15 each of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received which (i) all fees and other amounts due and payable on shall be endorsed or prior otherwise amended to the Restatement Effective Dateinclude a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under shall name the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Collateral Agent, on behalf of the Existing Credit Agreement.
Guaranteed Creditors, as additional insured, (giii) The Borrower in the case of flood insurance, shall have delivered (a) identify the addresses of each property located in a special flood hazard, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation ; provided that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify acknowledges that the Borrower and the Lenders requirements of the Restatement Effective Datethis clause (i) were satisfied on March 12, and such notice shall be conclusive and binding2015.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness obligations of the Lenders to make Loans (ior to purchase participations in Swingline Loans) the provisions of Sections 1 and 2 of this Agreement (which hereunder shall be deemed to have occurred as of 9:00 a.m. (New York time) become effective on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, on which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either party hereto 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 Agreementparty.
(b) The Administrative Agent shall have received executed legal reasonably satisfactory written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Closing Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx Mxxxx Xxxxx LLP, special New York counsel to for the BorrowerCredit Parties, and (ii) Dxxxxx Gxxxxxx PLLCSxxxxxx Mxxxxxxx Hxxxxx LLP, special Michigan counsel to for the BorrowerCredit Parties, substantially in each case in form the forms of Exhibit E-1 and substance reasonably satisfactory to the Administrative Agent E-2, respectively, and covering such other matters relating to the Borrower, the Restated Credit AgreementParties, this Agreement and or the transactions contemplated hereby Transactions as the Administrative Agent Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the BorrowerCredit Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Effective Closing Date and signed by an Authorized the President, a Vice President or a Financial Officer of the Borrowereach Credit Party, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs stating that:
(ai) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth contained in Sections 7.4 Article III of this Agreement are correct on and 7.15 as of the Restated Credit Agreement)Closing Date; and
(ii) no event has occurred and is continuing that constitutes a Default.
(fe) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Closing Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f) The Borrower shall have repaid all obligations owing and outstanding under the each Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower All governmental and material third party approvals necessary in connection with the execution, delivery and performance of this Agreement shall have delivered to the Administrative Agent, been obtained and directly to any Lender requesting the same be in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Datefull force and effect. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Closing Date, and such notice shall be conclusive and binding. 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 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Third Amendment (i) including the provisions of Sections amendments contained in SECTION 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York timeagreements contained in SECTION 2) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be are subject to the satisfaction (or written waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “Third Amendment Effective Date”):
(a) The Administrative Agent (or its counsel) This Third Amendment shall have received from been duly executed by the BorrowerBorrowers, the Lenders under the Existing Credit AgreementSubsidiary Guarantors, the Resigning Administrative Agent, Required Lenders (with respect to the Successor Administrative Agent, each Letter of Credit Issuer (if anyamendment set forth in Section 1(b) hereof only) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Term Loan B Agent (which may include a copy transmitted by facsimile or other electronic transmission method), and delivered to the Term Loan B Agent, and the Lenders under the Credit Agreement consisting of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementat least the Required Term B Lenders immediately prior to the Third Amendment Effective Date.
(b) Jefferies, as Repricing Arranger, shall have received all fees due and payable under that certain Arranger Fee Letter, dated as of February 9, 2021, by and among the Borrowers and Jefferies (the “Third Amendment Fee Letter”).
(c) The Administrative Term Loan B Agent shall have received executed favorable legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (iA) Sxxxxxx Xxxxxxx Xxxxxx, Xxxx & Bxxxxxxx Xxxxxxxx LLP, special counsel to the BorrowerLoan Parties, (B) Xxxxx & Xxxxxx, L.L.P., Nevada counsel to the Loan Parties, (C) Xxxxxx and Calder, Cayman Islands counsel to the Loan Parties, and (iiD) Dxxxxx Gxxxxxx PLLCDLA Piper Luxembourg S.à x.x., special Michigan Luxembourg counsel to the BorrowerLoan Parties, with respect to the capacity of the Luxembourg Loan Parties to enter into the Loan Documents and subsistence of security interest, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019Term Loan B Agent.
(d) The Administrative Term Loan B Agent shall have received such documents and certificates a certificate signed by a Responsible Officer of the Borrowers as the Administrative Agent or its counsel may reasonably request relating to the organization, existence matters set forth in paragraphs (g) and good standing (h) of this SECTION 3;
(e) The Term Loan B Agent shall have received (I) a certificate dated as of the Borrower, and the authorization Third Amendment Effective Date of the transactions contemplated herebycorporate secretary or an assistant or associate corporate secretary or director (or such other officer reasonably acceptable to the Term Loan B Agent) of each of the Loan Parties, all in form and substance reasonably satisfactory to the Administrative Term Loan B Agent, certifying (i) that either (A) attached thereto is a true and complete and up to date copy of the articles or certificate of incorporation, memorandum and articles of association or other comparable organizational documents including any certificate on change of name and all amendments thereto of such Loan Party certified (other than in the case of any Loan Party that is a Cayman Islands exempted company) by the secretary of state (or comparable Governmental Authority) of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification or (B) the articles or certificate of incorporation or other comparable organizational documents of such Loan Party most recently delivered to the Term Loan B Agent have not been amended and its counsel.
are in full force and effect, (eii) The Administrative that either (A) attached thereto is a true and complete copy of the bylaws or comparable governing documents of such Loan Party, as then in effect and as in effect at all times without amendment of supersession from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate or (B) that the bylaws or comparable governing documents of such Loan Party most recently delivered to the Term Loan B Agent shall have received not been amended and are in full force and effect and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors or other comparable governing body or bodies of such Loan Party and, if applicable all the holders of the issued shares of such Loan Party, authorizing the execution, delivery and performance of this Third Amendment and any related Loan Documents to which it is a party, which are in full force and effect without amendment or supersession as of the date of the certificate, and as to the incumbency and genuineness of the signature of each officer, director or other comparable authorized manager or attorney of such Loan Party, executing this Third Amendment or any of such other Loan Documents, and attaching all such copies of the documents described above together with, in the case of the Loan Parties incorporated in the Cayman Islands, copies of their internal registers of directors and officers and registers of mortgages and charges and (II) in respect of (i) any Luxembourg Loan Party, (ii) WHBL Luxembourg S.à x.x., (iii) Herbalife Luxembourg Distribution S.à x.x., (iv) HLF Luxembourg Distribution S.à x.x. and (v) Herbalife Africa (together the “Luxembourg Entities” and each a “Luxembourg Entity”), a manager’s certificate dated as of the Restatement Third Amendment Effective Date and signed by an Authorized Officer a manager of the Borrowerrelevant Luxembourg Entity, confirming compliance, after giving effect certifying the following items: (A) an up-to-date copy of the articles of association of the relevant Luxembourg Entity; (B) an electronic true and complete certified excerpt of the Luxembourg Companies Register pertaining to the relevant Luxembourg Entity dated as of the date of this Agreement; (C) an electronic true and complete certified certificate of non-registration of judgment (certificat de non-inscription d’une décision judiciaire) dated as of the date of this Agreement issued by the Luxembourg Companies Register and reflecting the situation no more than one Business Day prior to the date of this Agreement; (D) with respect to the Luxembourg Loan Parties only, true, complete and up-to-date board resolutions approving the entry by the relevant Luxembourg Loan Party into, among others, the Loan Documents; (E) the relevant Luxembourg Entity is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (F) (with respect to the Luxembourg Loan Parties only) a true and complete specimen of signatures for each of the managers or authorized signatories having executed for and on behalf of the relevant Luxembourg Loan Party the Loan Documents; (G) a certificate of the domiciliation agent or signed by a manager of the relevant Luxembourg Entity certifying, as the case may be, (i) due compliance by the relevant Luxembourg Entity with, and adherence to, the provisions of the Luxembourg Law dated 31 May 1999 concerning the domiciliation of companies, as amended, and the related circulars issued by the Commission de Surveillance du Secteur Financier or (ii) that the premises of the Luxembourg Entity are leased pursuant to a legal, valid and binding (and still in full force and effect) lease agreement and correspond to sufficient unshared office space, with the conditions set forth in paragraphs (a) a separate entrance and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement)sufficient office equipment allowing it to effectively carry out its business activities.
(f) The Administrative Term Loan B Agent (or the Resigning Administrative Agent, as applicable) shall have received a certificate as of a recent date of the good standing of each of the Loan Parties (iother than the Luxembourg Loan Parties) all fees and other amounts due and payable on under the laws of its jurisdiction of organization, from the secretary of state (or prior to comparable Governmental Authority) of such jurisdiction as well as corresponding bring-down good standing certificates dated as of the Restatement Third Amendment Effective Date, includingsave that, to no such bring-down good standing certificate is required for any Loan Party that is a Cayman Islands exempted company where the extent invoiced at least two (2) above recent date of the certificate of good standing initially provided is no earlier than 10 Business Days prior to the Restatement Third Amendment Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.;
(g) The Borrower shall have delivered No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the Administrative Agenttransactions contemplated hereby;
(h) The representations and warranties of each Loan Party set forth in SECTION 5(b) of this Third Amendment are true and correct and the representations and warranties of each Loan Party set forth in SECTIONS 5(a) and (c) of this Third Amendment are true and correct in all material respects on and as of the Third Amendment Effective Date (immediately after giving effect to this Third Amendment) as if made on as of such date, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined except in the Restated Credit Agreement) case of any representations and warranties expressly stated to relate to a specific earlier date, in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (which case such representations and warranties shall be true and correct in all material respects as defined in the Restated Credit Agreement))of such earlier date; provided, that, in each case at least three such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”;
(3i) Business Days prior The Term Loan B Agent shall have received a solvency certificate in the form of Exhibit J of the Credit Agreement from a Responsible Officer of the Parent with respect to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders solvency of the Restatement Effective DateParent and its Subsidiaries, and such notice shall be conclusive and binding.on a consolidated basis, after giving effect to the Third Amendment;
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 This Amendment and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to Section 3 of this Agreement, which shall be deemed to have occurred on as the “Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in Date”) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from this Amendment, duly executed and delivered by (A) the BorrowerLoan Parties and (B) the Majority Lenders, (C) each Revolving Credit Lender and (D) the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (addressed to received, on behalf of itself, the Administrative Agent and other Agents, the Lenders and dated the Restatement Effective Date) each Issuing Bank, an opinion of (i) Sxxxxxx Xxxxxxx Xxxxxxxx & Bxxxxxxx Xxxxx LLP, special counsel to for the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLCXxxxxxx Xxxxxxx Street LLP, special Michigan Kansas counsel for the Borrowers, in each case, dated the Restatement Effective Date and addressed to the BorrowerAgents, the Issuing Bank and the Lenders, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements Payment of all reasonable fees and expenses due to the Borrower for Administrative Agent (as agreed to in writing between the Administrative Agent and the Parent Borrower) (including, without limitation, fees and reasonable out-of-pocket expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent), in each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019case required to be paid on the Restatement Effective Date.
(d) The Administrative Agent shall have received for the account of each Lender executing and delivering a Consent, a consent fee in an amount equal to 0.25% multiplied by such documents Lender’s aggregate principal amount of, without duplication, Loans and certificates as Commitments on the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counselRestatement Effective Date.
(e) The Administrative Agent shall have received with respect to each Mortgaged Property, (x) a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination and (by) of Section 6.2 of the Restated Credit Agreement (includingif any improvements located on any Mortgaged Property are located in a special flood hazard area, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees a notice about special flood hazard area status and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid flood disaster assistance duly executed by the Parent Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment flood insurance satisfying the requirements of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 8.03(c)(iv) of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this This Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) become effective on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective 2021 Increased Amount Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to upon the satisfaction of the following conditions precedentprecedent set forth in this Section 4:
(a) The Administrative Agent (or its counsel) shall have received from each Borrower and from each other party hereto (including the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any2021 Incremental Term Loan Lender, each Revolving Lender, each 2016 Incremental Term Loan Lender and such other Lenders and Voting Participants constituting the Required Lenders) and the Swingline Lender 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 an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received executed legal written opinions of counsel for the Borrowers (addressed including any local counsel, if applicable), dated the date hereof and as to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance matters reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestLenders.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent 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 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 the such Borrower, and (B) the authorization of the transactions contemplated herebyexecution, all delivery and performance by such Borrower of this Agreement and, in form and substance reasonably satisfactory the case of RLP, the incurrence of the 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 its counselafter 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 certificate, dated duly executed copy of a guarantee agreement with respect to the Restatement Effective Date and signed by an Authorized Officer of 2021 Incremental Term Loan Facility in the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).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 (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Datereceived, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective 2021 Increased Amount Date, reimbursement or payment of (i) all reasonable outdocumentation and other information required by authorities under applicable “Know Your Customer” and Anti-ofTerrorism and Anti-pocket expenses required to be reimbursed or paid by Corruption Laws and regulations, including, without limitation, the Borrower under the Existing Credit Agreement and the Restated Credit Agreement USA PATRIOT Act and (ii) evidence of payment of all accrued and unpaid interest if any Borrower qualifies as a “legal entity customer” under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective DateBeneficial Ownership Regulation, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement))such Borrower, in each case case, to the extent requested in writing by the Administrative Agent at least three (3) Business Days prior to the Restatement Effective 2021 Increased Amount Date. .
(i) The Administrative Agent shall notify have received the Borrower 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 Lenders 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 Restatement Effective DateCredit Agreement in connection with the preparation, negotiation, execution and such notice shall be conclusive and bindingdelivery of this Agreement.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be was subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer party hereto either (if anyi) and the Swingline Lender either a counterpart of this Agreement and all other Loan Documents (including, without limitation, the Security Documents) to be delivered on or before the Effective Date, signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy transmission or other electronic transmission of a pdf formatted copy of a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementAgreement and all other Loan Documents to be delivered on or before the Effective Date.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders on the Effective Date and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx Bxxx Xxxxx & Bxxxxxxx Sxxx PLC, counsel for the Credit Parties, (ii) Hxxxxxx Xxxx LLP, counsel to the Borrower(iii) Lxxxxx Xxxxxxx Xxxx & Lxxxxxxx Ltd., (iv) MxXxxxxx Txxxxxxx LLP, (v) Norton Rxxx Xxxxxxxxx LLP, and (iivi) Dxxxxx Gxxxxxx PLLCapplicable local counsel, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and Agent, covering such matters relating to the BorrowerCredit Parties, the Restated Credit Agreement, this Agreement and Loan Documents or the transactions contemplated hereby thereby as the Administrative Agent Required Lenders shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the incorporation, organization, existence and good standing (if applicable) of each of the BorrowerCredit Parties, and the authorization of the transactions contemplated herebyby the Loan Documents and any other legal matters relating to the Credit Parties, the Loan Documents or the transactions contemplated thereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, Borrowing Base Certificate dated the Restatement Effective Date Date, relating to the Fiscal Month ended immediately prior to the Effective Date, and signed executed by an Authorized a Financial Officer of the Lead Borrower.
(e) The Agent shall have received a certificate from a Financial Officer of the Lead Borrower, confirming compliancetogether with such other evidence reasonably requested by the Agent, after giving effect in each case reasonably satisfactory in form and substance to this Agreementthe Agent, with certifying that as of the conditions set forth Effective Date (i) the Credit Parties, on a Consolidated basis, are Solvent, (ii) there has been no event or circumstance since January 28, 2017 that has had or could be reasonably expected to have, either individually or in paragraphs (a) the aggregate, a Material Adverse Effect, and (biii) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth made by the Borrowers in Sections 7.4 the Loan Documents are true and 7.15 correct in all material respects and that no event has occurred (or failed to occur) which is or which, solely with the giving of the Restated Credit Agreement)notice or passage of time (or both) would be a Default or an Event of Default.
(f) The Administrative Agent (or All necessary consents and approvals to the Resigning Administrative transactions contemplated hereby shall have been obtained and shall be reasonably satisfactory to the Agent, including, without limitation, consents from all requisite material Governmental Authorities and, except as applicable) would not reasonably be expected to have or result in a Material Adverse Effect, all third parties shall have received (i) all fees and other amounts due and payable on approved or prior consented to the Restatement Effective Date, includingtransactions contemplated hereby, to the extent invoiced at least two (2) Business Days prior required, all applicable waiting periods shall have expired and there shall be no material governmental or judicial action, actual or threatened, that would reasonably be expected to materially restrain, prevent or impose burdensome conditions on the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreementtransactions contemplated hereby.
(g) The Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Borrower Consolidated Group (subject, in the case of interim financial statements, to year-end adjustments and the absence of footnotes) and that there has been no Material Adverse Effect since January 28, 2017.
(h) Except as set forth on Schedule 3.6, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect.
(i) There shall not have occurred any event of default, nor shall any event exist which is, or solely with the passage of time, the giving of notice or both, would be an event of default under any Material Indebtedness.
(j) The Agent shall have received results of searches from such jurisdictions as may be reasonably required by the Agent or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the Collateral, including, without limitation, receivables from credit card processors and check processors, except for Liens permitted by Section 6.2 and Liens for which termination statements, estoppel certificates and releases reasonably satisfactory to the Agent are being tendered on the Effective Date.
(k) The Agent shall have received all documents and instruments, including Uniform Commercial Code and PPSA financing statements, and certified statements issued by the Quebec Register of Personal and Movable Real Rights, required by law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents (or to extend such filings) and, to the extent required by the Agent, all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent.
(l) The Agent shall have received Account Control Agreements, the Credit Card Notifications, Collateral Control Agreements, and other similar third party agreements required to be delivered hereunder on or before the Effective Date.
(m) All fees due to the Agent and Lenders at or immediately after the Effective Date and all reasonable costs and expenses incurred by the Agent in connection with the establishment of the credit facility contemplated hereby (including the reasonable and documented out-of-pocket fees and expenses of counsel to the Agent) shall have been paid in full.
(n) The consummation of the transactions contemplated hereby shall not (a) violate any Applicable Law, or (b) conflict with, or result in a default or event of default under, any material agreement of Borrowers or any other Credit Party, taken as a whole (and the Agent and the Lenders shall receive a satisfactory opinion of Borrowers’ counsel to that effect). No event shall exist which is, or solely with the passage of time, the giving of notice or both, would be an event of default under any agreement of any of the Credit Parties if such event of default could reasonably be expected to have a Material Adverse Effect.
(o) There shall be no Default or Event of Default on the Effective Date.
(p) The Agent shall have received, and be reasonably satisfied with, evidence of the Borrowers’ insurance, together with such endorsements as are required by the Loan Documents.
(q) The Agent shall have received all of the items set forth on the Closing Agenda attached hereto as Exhibit F.
(r) The Agent and the Lenders shall have received and be satisfied with (a) a detailed forecast for the period commencing with the Fiscal Year beginning January 29, 2017 and ending on the Maturity Date, which shall include a Consolidated income statement, profit and loss statement, balance sheet, and statement of cash flow, prepared on an annual basis, each prepared in conformity with GAAP and consistent with the Borrowers’ then current practices, (b) a monthly Excess Availability analysis for the thirteen (13) month period following the Effective Date, and (c) such other information (financial or otherwise) reasonably requested by the Agent.
(s) The Borrowers shall have Excess Availability on the Effective Date, after giving effect to any Credit Extensions made on the Effective Date, of not less than $150,000,000.
(t) The Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Proceeds of Crime Act.
(u) There shall have been delivered to the Administrative Agent, Agent such additional instruments and directly to any Lender requesting documents as the same in a written notice Agent or counsel to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (Agent reasonably may require or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Daterequest. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment No. 1 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedentprecedent that:
(a) The the Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the Borrower, the Lenders under (including the Existing Credit AgreementDeparting Lenders), the Resigning New Lenders and the Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.;
(b) The the Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) such certificates of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPresolutions or other action, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent shall may reasonably request.require evidencing the identity, authority and capacity of each Responsible Officer authorized to act as a Responsible Officer in connection with this Amendment and the Loan Documents;
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates certifications as the Administrative Agent or its counsel may reasonably request relating require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the organizationextent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(d) the Administrative Agent shall have received favorable opinions of Skadden, existence Arps, Slate Xxxxxxx & Xxxx LLP and good standing of Xxxxxxx Xxxxx LLP, counsels to the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory addressed to the Administrative Agent and its counsel.each Lender;
(e) The the Administrative Agent shall have received a certificate, dated the Restatement Effective Date and certificate signed by an Authorized a Responsible Officer certifying (A) that the conditions specified in Section 4.02 of the Borrower, confirming compliance, after giving effect to this Agreement, with Credit Agreement have been satisfied; (B) the conditions set forth in paragraphs (a) current Debt Ratings; and (bC) of Section 6.2 that, as of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) date of the Restated last financial statements delivered pursuant to the Credit Agreement, the representations and warranties set forth Borrower was in Sections 7.4 and 7.15 pro forma compliance with the financial covenants contained in Section 7.10 of the Restated Credit Agreement).;
(f) The the Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) payment of all fees and other amounts expenses (including fees and expenses of counsel for the Administrative Agent) due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.in connection with this Amendment; and
(g) The Borrower each Departing Lender shall have delivered to received substantially concurrently with the Administrative Agent, and directly to any Lender requesting Amendment No. 1 Effective Date the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation payment owing to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined described in the Restated Credit Agreement)), in each case at least three (3Section 2(c)(iii) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingabove.
Appears in 1 contract
Samples: Credit Agreement (Hcp, Inc.)
Conditions of Effectiveness. The effectiveness of This Agreement shall become effective when (i) the provisions of Sections 1 and 2 Administrative Agent shall have received counterparts of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on executed by the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) Borrower and all Lenders party hereto, (ii) the amendment and restatement of Administrative Agent shall have received the Existing Credit Agreement fees provided to be paid pursuant to Section 3 of this Agreement, which the Fee Letter and (iii) the Administrative Agent shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in received each case, shall be subject to the satisfaction of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto and the conditions precedentspecified below shall have been satisfied:
(a) The Administrative Agent (or its counsel) A Revolving Loan Note payable to the order of each Lender that shall have received from requested a Revolving Loan Note in accordance with this Agreement and the BorrowerSwing Line Note payable to the Swing Line Bank.
(b) From each Subsidiary of the Borrower (except for the Mortgage Banking Subsidiaries and the Subsidiaries listed in Schedule VII hereto), a Guaranty executed and delivered as of the Lenders under Closing Date.
(c) The favorable written opinions addressed to the Existing Credit AgreementLenders, and in form and substance satisfactory to the Resigning Administrative Agent, from (i) Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx, LLP (counsel to the Successor Administrative AgentBorrower), each Letter of Credit Issuer with respect to the Borrower and (if anyii) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP or written evidence any other firm reasonably satisfactory to the Administrative Agent (which may include facsimile or as counsel for such other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received executed legal opinions (addressed to Loan Parties as the Administrative Agent and the Lenders and dated the Restatement Effective Datemay require) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance which opinions shall be reasonably satisfactory to the Administrative Agent Agent. The Borrower hereby instructs such counsel to prepare their opinions and covering deliver such matters relating opinions to the Borrower, Lenders for the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements benefit of the Borrower for each quarterly period ended March 31Lenders, 2019, June 30, 2019 and September 30, 2019such opinions shall contain a statement to such effect.
(d) The following supporting documents with respect to the Borrower and (to the extent required by Administrative Agent shall in its sole discretion) each other Loan Party: (i) a copy of its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date to be a true and accurate copy by the Secretary of State of its state of incorporation or formation; (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date, as to its existence and (if available) good standing; (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation, in which it does business, as to its qualification as a foreign corporation; (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date; (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have received executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement and any Notes, Guaranties and other Loan Documents delivered on the Closing Date to which it is a party and the performance by it of all its obligations thereunder; and (vii) such additional supporting documents and certificates other information with respect to its operations and affairs as the Administrative Agent may reasonably request.
(e) Certificates signed by a duly authorized officer of the Borrower stating that: (i) the representations and warranties of the Borrower contained in Article IV hereof are correct and accurate on and as of the Closing Date as though made on and as of the Closing Date and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default hereunder.
(f) A certificate signed by an Authorized Financial Officer of the Borrower showing in reasonable detail the calculations used to determine the Leverage Ratio for the Pricing Grid.
(g) The certified financial statements provided for in Section 6.04(b) hereof for the quarter ending February 28, 2005.
(h) The certified report provided for in Section 6.04(i) hereof for the quarter ending February 28, 2005.
(i) An Affidavit confirming the execution and delivery of this Agreement and the Notes outside the State of Florida.
(j) Evidence of payment in full of all amounts outstanding under the Existing Credit Agreement.
(k) Such other documents as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counselrequest.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 4 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is March 12, in 2015) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment, duly executed and delivered by (i) the Borrower, (ii) Holdings, (iii) the MLP, (iv) Consenting Lenders under constituting the Existing Credit Agreement, Required Lenders and (v) the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 4 Effective Date and addressed to the Administrative Agent and each of the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPLenders, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) certificates of good standing (to the extent such documents and concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the organizationAmendment No. 4 Effective Date, existence and good standing signed by a Responsible Officer of the Borrower, and the authorization confirming satisfaction of the transactions contemplated hereby, conditions set forth in Sections 2(e) and (f) of this Amendment.
(d) Payment of all in form reasonable fees and substance reasonably satisfactory expenses due to the Administrative Agent and its counselXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower).
(e) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 4 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) No Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) The Administrative Agent shall have received from the Borrower a certificate, dated consent fee payable for the Restatement Effective Date and signed by account of each Consenting Lender in an Authorized Officer amount equal to 0.75% of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) aggregate principal amount of Section 6.2 Term Loans held by such Consenting Lender as of the Restated Amendment No. 4 Effective Date.
(h) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable Credit Party) together with a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 9.03 of the Credit Agreement (including, for purposes of Section 6.2(a)(iiwithout limitation, flood insurance policies) and the applicable provisions of the Restated Credit AgreementSecurity Documents, the representations and warranties set forth in Sections 7.4 and 7.15 each of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received which (i) all fees and other amounts due and payable on shall be endorsed or prior otherwise amended to the Restatement Effective Dateinclude a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under shall name the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Collateral Agent, on behalf of the Existing Credit Agreement.
Guaranteed Creditors, as additional insured, (giii) The Borrower in the case of flood insurance, shall have delivered (a) identify the addresses of each property located in a special flood hazard, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation ; provided that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify acknowledges that the Borrower and the Lenders requirements of the Restatement Effective Datethis clause (i) were satisfied on March 12, and such notice shall be conclusive and binding2015.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) the first date on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from either (A) counterparts of this Amendment duly executed by each of the BorrowerLoan Parties, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative AgentRequired Lenders, each Letter of Credit Issuer (if any) Lender with a Term Loan Commitment that is being increased pursuant to this Amendment and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party Administrative Agent or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed an executed signature page of this AgreementAmendment) that such party has signed a counterpart parties have executed counterparts of this AgreementAmendment.
(b) The Administrative Agent (or its counsel) shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date) of each of (i) Sxxxxxx Xxxxxxx Fxxxx & Bxxxxxxx Lxxxxxx LLP, special counsel to for the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLCAxxxxx Xxx, special Michigan Irish counsel to for the BorrowerLoan Parties and (iii) Axxxx & Oxxxx, Société en Commandite Simple, inscrite au barreau de Luxembourg, special Luxembourg counsel for the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the Borrower, the Restated Credit AgreementLoan Parties, this Agreement Amendment and the transactions contemplated hereby Amended Loan Agreement as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing (or the equivalent) of the BorrowerLoan Parties, and the authorization of this Amendment, the transactions contemplated herebyAmended Loan Agreement and any other legal matters relating to the Loan Parties, the Amendment and the Amended Loan Agreement, 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 Term Lender that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent (in consultation with the Borrower), an upfront fee in respect of the incremental portion of its increased Term Loan Commitment in an amount equal to the applicable amount previously disclosed to the Term Lenders (and established by the Administrative Agent in consultation with the Borrower).
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer payment and/or reimbursement of the BorrowerAdministrative Agent’s and its affiliates’ fees and expenses (including the reasonable, confirming compliancedocumented and invoiced fees, after giving effect to this Agreement, disbursements and other charges of one primary counsel (and one additional local counsel in each applicable jurisdiction) for the Administrative Agent) in accordance with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, includingLoan Documents, to the extent invoiced at least two (2in reasonable detail) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days one (1) Business Day prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Amendment Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Amendment Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Loan Agreement (PENTAIR PLC)
Conditions of Effectiveness. The effectiveness This Agreement, and the obligations of (i) the provisions Lenders to make Loans and of Sections 1 the L/C Issuers to issue Letters of Credit shall, shall become effective on and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) the first date on the date which the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentsatisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer party hereto either (if anyi) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party party, or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent Agent, the L/C Issuers and the Lenders and dated the Restatement Effective Closing Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to for the Borrowerinitial Borrowers, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerBorrowers, the Restated Credit Agreement, this Agreement and Loan Documents or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such customary documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, initial Borrowers and the authorization of the transactions contemplated hereby, Transactions all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Effective Closing Date and signed by an Authorized Officer the President or a Vice President of the BorrowerCompany, confirming complianceor a Financial Officer, after giving effect to this Agreement, with the conditions set forth in paragraphs certifying (ai) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, that the representations and warranties set forth contained in Sections 7.4 Article V are true and 7.15 correct in all material respects (or, with respect to representations and warranties that contain a materiality qualification, are true and correct in all respects) as of such date, except to the Restated extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties that contain a materiality qualification, are true and correct in all respects) as of such earlier date, and (ii) that no Default or Event of Default has occurred and is continuing as of such date.
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it that the credit facility evidenced by the Existing Credit Agreement)Agreement shall have been or will be substantially concurrently with the effectiveness of this Agreement terminated and cancelled and all indebtedness thereunder shall have been or will be substantially concurrently with the effectiveness of this Agreement fully repaid and any and all liens thereunder, if any, have been or will be substantially concurrently with the effectiveness of this Agreement terminated and released.
(f) The Administrative Agent (or the Resigning Administrative Agentapplicable Arranger, as applicableif such fees are paid directly to such Arranger) shall have received (i) all fees and other amounts due and payable to the Administrative Agent, the Lenders and the Arrangers on or prior to the Restatement Effective Closing Date, including, to the extent invoiced at least two (2) three Business Days prior to the Restatement Effective DateClosing Date (or such shorter period of time as is agreed by the Company), reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit AgreementCompany hereunder.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at At least three (3) Business Days prior to the Restatement Effective Closing Date, the initial Borrowers shall have provided to the Administrative Agent and each Lender the documentation and other customary information reasonably requested by the Administrative Agent or such Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. The If any initial Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender, shall have received a Beneficial Ownership Certification in relation to such Borrower. Without limiting the generality of the provisions of Section 9.03 or Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall notify have received notice from such Lender prior to the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Revvity, Inc.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 3 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is October 13, in 2015) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the Lenders under MLP, (C) the Existing Credit Agreement, Consenting Lender and (D) the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 3 Effective Date and addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPConsenting Lender, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) certificates of good standing (to the extent such documents and concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the organizationAmendment No. 3 Effective Date, existence and good standing signed by a Responsible Officer of the Borrower, and the authorization confirming satisfaction of the transactions contemplated hereby, conditions set forth in Sections 3(e) and (f) of this Amendment.
(d) Payment of all in form reasonable fees and substance reasonably satisfactory expenses due to the Administrative Agent and its counselXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower).
(e) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 3 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) After giving effect to this Amendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) The Administrative Agent shall have received from the Borrower a certificate, dated consent fee payable for the Restatement Effective Date and signed by an Authorized Officer account of the BorrowerConsenting Lender, confirming compliance, after giving effect in an amount equal to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 0.25% of the Restated Credit Agreement (including, for purposes aggregate principal amount of Section 6.2(a)(ii) Commitments held by the Consenting Lender as of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (Amendment No. 3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 2 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this AgreementAmendment shall become effective, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness as of the provisions of Sections 1 and 2 of this AgreementSeptember 30, in each case2016, shall be subject to upon the satisfaction of the following conditions precedentconditions:
(a) The Administrative Agent (or its counsel) shall have received from execution and delivery of this Amendment by the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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 Agreementand Required Lenders.
(b) The Administrative Agent There shall not have received executed legal opinions occurred a material adverse change (addressed to a) in the Administrative Agent and the Lenders and dated the Restatement Effective Dateoperations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Guarantor, the Borrower or their Subsidiaries, taken as a whole, since June 30, 2016 (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, except in each case in form and substance reasonably satisfactory to the Administrative Agent extent triggered by the bankruptcy of Hanjin Shipping Co., Ltd. And its Affiliates), (b) the ability of the Borrower or the Guarantor to perform its Obligations under the Loan Documents, (c) the legality, validity, binding effect or enforceability against the Borrower or Guarantor of the Loan Documents (collectively, a “Material Adverse Effect”), or (d) in the facts and covering such matters relating information regarding the Borrower and Guarantor as represented to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestdate.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower for each quarterly period ended March 31or the Guarantor, 2019, June 30, 2019 and September 30, 2019threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent shall have received such documents and certificates of Responsible Officer of each Loan Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to the organization, existence and good standing of the Borrower, act as a Responsible Officer in connection with this Amendment and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory other Loan Documents to the Administrative Agent and its counselwhich such Loan Party is a party.
(e) The Administrative Agent shall have received a certificateBorrowing Base Certificate, dated the Restatement Effective Date and signed by an Authorized Officer as of the BorrowerSeptember 30, confirming compliance2016, demonstrating, on a pro forma basis after giving effect to contemplated and permitted asset dispositions and Segregated Collateral Pool Liens and effectiveness of this AgreementAmendment, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).continued Borrowing Base compliance. sf-3703943
(f) The Borrower shall have provided the Administrative Agent (with copies of amendments or the Resigning Administrative Agentwaivers, as applicable) shall have received under (i) all fees the Revolving Credit Agreement, dated as of July 23, 2015, among the Borrower, as borrower, the Guarantor, as guarantor, the lenders party thereto and other amounts due ABN AMRO Capital USA LLC, as administrative agent, (ii) the Term Loan Agreement, dated as of April 30, 2014, among the Borrower, as borrower, the Guarantor, as guarantor, the lenders party thereto and payable on Union Bank, N.A., as administrative agent, (iii) the Credit Agreement, dated as of April 26, 2013, among TAP Funding Ltd., as borrower, the lenders party thereto and ABN AMRO Capital USA LLC, as administrative agent, and (iv) the Credit Agreement, dated as of August 5, 2011, among TW Container Leasing, Ltd., the lenders party thereto and Xxxxx Fargo Securities LLC, as administrative agent, required for the Borrower to certify that no default or prior event of default exists under any Indebtedness facilities to which the Restatement Effective DateBorrower, includingGuarantor or Subsidiaries is an obligor, in each case certified as complete and correct and in full force and effect, except to the extent invoiced at least two (2) Business Days prior to conditioned on the Restatement Effective Date, reimbursement or payment simultaneous effectiveness of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreementthis Amendment.
(g) The Borrower shall have delivered paid or caused to be paid to the Administrative AgentAgent all fees as described in the fee letter between the Administrative Agent and the Borrower, including, without limitation, a fee for the account of each Lender who executes and directly delivers this Amendment no later than 5:00 p.m. eastern time on October 26, 2016, an amendment fee equal to any Lender requesting 12.5 basis points of the same respective Commitment of such Lender.
(h) The Borrower shall have paid all amounts described in a written notice to the Borrower at least 10 days Section 8(b) hereof that have been invoiced prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingdate hereof.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York time) on the such date the following conditions precedent shall have been satisfied or waived (being referred to as the “Amendment No. 5 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementdate is March 17, in 2016) when each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the Lenders under MLP, (C) the Existing Credit Agreement, Consenting Lender and (D) the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (received, on behalf of itself and the Lenders, an opinion from Xxxxxx & Xxxxxxx LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 5 Effective Date and addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPConsenting Lender, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably requestAgent.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received (i) certificates of good standing (to the extent such documents and concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent or its counsel may reasonably request relating require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the organizationAmendment No. 5 Effective Date, existence and good standing signed by a Responsible Officer of the Borrower, and the authorization confirming satisfaction of the transactions contemplated hereby, conditions set forth in Sections 2(e) and (f) of this Amendment.
(d) Payment by the Borrower of all in form reasonable fees and substance reasonably satisfactory expenses due to the Administrative Agent and its counselXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Arranger”), including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the legal fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent).
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date representations and signed by an Authorized Officer warranties of the BorrowerBorrower and each other Credit Party contained in Section 8 of the Credit Agreement (as amended hereby) or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 5 Effective Date, confirming complianceexcept to the extent that such representations and warranties specifically refer to an earlier date, after in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) After giving effect to this AgreementAmendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the conditions set forth in paragraphs (aBorrower and each applicable Credit Party) together with a copy of, or certificate as to coverage under, and (b) of a declaration page relating to, the insurance policies required by Section 6.2 9.03 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(iiwithout limitation, flood insurance policies) and the applicable provisions of the Restated Credit AgreementSecurity Documents, the representations and warranties set forth in Sections 7.4 and 7.15 each of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received which (i) all fees and other amounts due and payable on shall be endorsed or prior otherwise amended to the Restatement Effective Dateinclude a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under shall name the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Collateral Agent, on behalf of the Existing Credit Agreement.
Guaranteed Creditors, as additional insured, (giii) The Borrower in the case of flood insurance, shall have delivered (a) identify the address of each property located in a special flood hazard zone, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of This Agreement shall become effective when (i) the provisions of Sections 1 and 2 Administrative Agent shall have received counterparts of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on executed by the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) Borrower and all Lenders party hereto, (ii) the amendment and restatement of Administrative Agent shall have received the Existing Credit Agreement fees provided to be paid pursuant to Section 3 of this Agreement, which the Fee Letter and (iii) the Administrative Agent shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in received each case, shall be subject to the satisfaction of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto and the conditions precedentspecified below shall have been satisfied:
(a) The Administrative Agent (or its counsel) A Revolving Loan Note payable to the order of each Lender that shall have received from requested a Revolving Loan Note in accordance with this Agreement and the BorrowerSwing Line Note payable to the Swing Line Bank.
(b) From each Material Subsidiary, including any Subsidiary that has a Net Worth of less than $10,000,000 but is required to be a Guarantor hereunder by reason of the Lenders under proviso contained in the Existing Credit Agreementdefinition of “Material Subsidiary” (except the Excluded Subsidiaries), a Guaranty executed and delivered as of the Resigning Closing Date.
(c) The favorable written opinions addressed to the Lenders, and in form and substance satisfactory to the Administrative Agent, from (i) Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx, LLP (counsel to the Successor Administrative AgentBorrower), each Letter of Credit Issuer with respect to the Borrower and (if anyii) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP or written evidence any other firm reasonably satisfactory to the Administrative Agent (which may include facsimile or as counsel for such other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received executed legal opinions (addressed to Loan Parties as the Administrative Agent and the Lenders and dated the Restatement Effective Datemay require) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance which opinions shall be reasonably satisfactory to the Administrative Agent Agent. The Borrower hereby instructs such counsel to prepare their opinions and covering deliver such matters relating opinions to the Borrower, Lenders for the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements benefit of the Borrower for each quarterly period ended March 31Lenders, 2019, June 30, 2019 and September 30, 2019such opinions shall contain a statement to such effect.
(d) The following supporting documents with respect to the Borrower and (to the extent required by Administrative Agent shall in its sole discretion) each other Loan Party: (i) a copy of its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date to be a true and accurate copy by the Secretary of State of its state of incorporation or formation; (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date, as to its existence and (if available) good standing; (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation, in which it does business, as to its qualification as a foreign corporation; (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date; (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have received executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement and any Notes, Guaranties and other Loan Documents delivered on the Closing Date to which it is a party and the performance by it of all its obligations thereunder; and (vii) such additional supporting documents and certificates other information with respect to its operations and affairs as the Administrative Agent may reasonably request.
(e) Certificates signed by a duly authorized officer of the Borrower stating that: (i) the representations and warranties of the Borrower contained in Article IV hereof are correct and accurate on and as of the Closing Date as though made on and as of the Closing Date and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default hereunder.
(f) The certified financial statements provided for in Section 6.04(b) hereof for the quarter ending May 31, 2006.
(g) The certified report provided for in Section 6.04(i) hereof for the quarter ending May 31, 2006.
(h) An Affidavit confirming the execution and delivery of this Agreement and the Notes outside the State of Florida.
(i) Evidence of payment in full of all amounts outstanding under the Existing Credit Agreement.
(j) Such other documents as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counselrequest.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 This Agreement shall become effective on and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. the first date (New York timethe “Closing Date”) on the date which all of the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedentsatisfied:
(a) The Administrative Agent (or its counsel) shall have received from Agent’s receipt of the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agentfollowing, each Letter of Credit Issuer which shall be original, or e-mail (if anyin a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(which may include facsimile i) executed counterparts of this Agreement and the Guaranty;
(ii) a Term Note executed by the Borrower in favor of each Lender requesting a Term Note prior to the Closing Date;
(iii) such certificates of resolutions or other electronic transmission action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a signed signature page of Responsible Officer in connection with this Agreement) that Agreement and the other Loan Documents to which such party has signed Loan Party is a counterpart of this Agreement.party;
(biv) The such documents and certifications as the Administrative Agent shall may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have received executed legal opinions a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Lenders Loan Parties and dated the Restatement Effective DateLoan Documents as the Administrative Agent may reasonably request;
(vi) a favorable opinion of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, in-house counsel to the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory addressed to the Administrative Agent and covering each Lender, as to such matters relating to concerning the Borrower, the Restated Credit Agreement, this Agreement Loan Parties and the transactions contemplated hereby Loan Documents as the Administrative Agent shall may reasonably request;
(vii) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying that (1) the conditions specified in this Section 4.01 have been satisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01) and (2) no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority related to the credit facility being provided under this Agreement or that could reasonably be expected to have a Material Adverse Effect;
(x) a Solvency Certificate from the Loan Parties certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, any Credit Extension to occur on the Closing Date), the REIT and its Consolidated Subsidiaries, on a consolidated basis, are Solvent;
(xi) a duly completed Compliance Certificate as of the Closing Date (giving pro forma effect to the transactions to occur on the Closing Date, including, without limitation, all Credit Extensions to occur on the Effective Date), signed by a Responsible Officer of Borrower (such certificate being referred to herein as the “Pro Forma Closing Date Compliance Certificate”); and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or any Arranger reasonably may require.
(i) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) The All due diligence with respect to the REIT, the Borrower and their respective Subsidiaries, in scope and determination satisfactory to the Administrative Agent, Arrangers and the Lenders in their sole discretion, shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019been completed.
(d) The There shall not have occurred since December 31, 2015 any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) (limited to the fees and expenses of one primary counsel, one specialty counsel in each specialty and one local counsel in each local jurisdiction) to the extent invoiced prior to or on the first Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). 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 Administrative Agent shall have received written notice from such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or Lender prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreementproposed Closing Date specifying its objection thereto.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the date on which the following conditions precedent shall have been satisfied (or waived waived) (the “Extension Amendment No. 1 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:):
(a) The Administrative Agent (or its counsel) Agents shall have received from counterparts of this Amendment executed by the Borrower, Borrowers and the Lenders under on, or prior to, 3:00 p.m., New York City time on April 3, 2019 (the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.“Consent Deadline”);
(b) The Administrative Agent shall have received executed legal opinions (addressed After giving effect to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 Article 5 of the Restated Credit Agreement).Agreement (as amended by this Amendment) are true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation or warranty is true and correct in all respects) as of the Extension Amendment No. 1 Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation or warranty is true and correct in all respects) as of such earlier date) and immediately prior to and after giving effect to the Extension Amendment No. 1 Effective Date, no Default or Event of Default shall have occurred and be continuing;
(c) The Administrative Agents shall have received a legal opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Borrower Parties, addressed to the Administrative Agents and the Lenders and reasonably satisfactory to the Revolving Facility Administrative Agent;
(d) The Administrative Agents shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Amendment, the Credit Agreement (as amended hereby) and the Loan Documents to which it is a party;
(e) The Administrative Agents shall have received a certificate of the secretary or an assistant secretary of the Administrative Borrower confirming compliance with the conditions precedent set forth in clause (b) of this Section 4;
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) Borrowers shall have received (i) paid all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed paid to the Lenders on or paid by before the Borrower under Extension Amendment No. 1 Effective Date (including, without limitation, the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.Amendment Fees); and
(g) The Borrower Borrowers and each of the Guarantors shall have delivered to the Administrative Agentprovided, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days one Business Day prior to the Restatement Extension Amendment No. 1 Effective Date, the documentation and other information to the Lenders that are required by regulatory authorities under applicable “know-your-customer” rules and regulations (including, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)respect of such Borrower), in each case at least three (3) Business Days prior to including the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingPatriot Act.
Appears in 1 contract
Samples: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred become effective as of 9:00 a.m. the first date (New York timethe “Amendment Effective Date”) on the date which, and only if, each of the following conditions precedent shall have been satisfied (or waived (by the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from the Borrowerreceived, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) in form and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party or written evidence substance satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page Agent, counterparts of this Agreement) Amendment executed by each of the Loan Parties, Lenders that such party has signed a counterpart of this Agreementconstitute the Required Lenders and the Administrative Agent.
(b) All loans and other obligations owing by the Borrower under the PNC Bank Credit Agreement and all outstanding Loans (in the case of the Loans, without a corresponding permanent reduction of the Revolving Commitments) shall have been, or substantially concurrently with the Amendment Effective Date shall be, paid in full.
(c) The Administrative Agent shall have received executed legal opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPreceived, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating Agent, an amendment to the Borrower, the Restated KeyBank 2017 Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as this Agreement and Amendment or otherwise substantially consistent with the transactions contemplated hereby as summary of amendment terms previously approved by the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019be deemed satisfactory.
(d) The Administrative Agent Since May 3, 2021, there shall not have received such documents and certificates as the Administrative Agent been any Asset Disposition of an Unencumbered Property or its counsel may reasonably request relating to the organization, existence and good standing any incurrence of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counselIndebtedness secured by a Lien on any Unencumbered Property.
(e) The Administrative Agent shall have received a certificatethe following items from the Borrower:
(i) Certificates of good standing for the Borrower and the Company from the states of organization of such Person, certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Restatement Amendment Effective Date Date;
(ii) Copies of the formation documents of the Borrower and signed the Company certified by an Authorized Officer officer of such Person, together with all amendments thereto;
(iii) Incumbency certificates, executed by officers of the Borrower and the Company, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Person, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower; and
(iv) Copies, certified by a Secretary or an Assistant Secretary of the Borrower and the Company 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 Loan Documents to be executed and delivered by such Persons.
(i) The fees separately agreed by the Administrative Agent and the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (bii) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced to the Borrower at least two one (21) Business Days Day prior to the Restatement Amendment Effective Date, reimbursement or payment all of all the reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
Administrative Agent (g) The Borrower shall have delivered to including the reasonable fees and expenses of one firm of counsel for the Administrative Agent, ) due and directly to any Lender requesting payable on the same Amendment Effective Date shall have been paid in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and bindingfull.
Appears in 1 contract
Samples: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 1 of this Agreement, which Agreement shall be deemed to have occurred on become effective as of the first date (the “Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in Date”) on which each case, shall be subject to the satisfaction of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received (i) from each of the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative AgentBorrowers, each Letter of Credit Issuer (if any) Lender, each New Lender and the Swingline Departing Lender 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) duly executed copies of the Loan Documents and such other legal opinions, certificates, resolutions, documents, instruments and agreements in respect of the Loan Parties as the Administrative Agent shall have reasonably requested in connection with the Transactions, all in form and substance satisfactory to the Company and Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(b) The Administrative Agent shall have received executed legal opinions a favorable written opinion (addressed to the Administrative Agent and the Lenders (but not the Departing Lender) under the Restated Credit Agreement and dated the Restatement Effective Date) of each of (i) Sxxxxxx Xxxxxx Xxxxx Xxxxxxx & Bxxxxxxx LLP, U.S. counsel for the Loan Parties, substantially in the form of Exhibit B-1 to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement (ii) Xxxxxxx, Bermuda counsel for the Loan Parties, substantially in the form of Exhibit B-2 to the Restated Credit Agreement, (iii) Stibbe, Dutch counsel for the Loan Parties, substantially in the form of Exhibit B-3 to the Restated Credit Agreement, (iv) Xxxxx & XxXxxxxx Zurich, Swiss counsel for the Loan Parties, substantially in the form of Exhibit B-4 to the Restated Credit Agreement, (v) HWL Ebsworth, Australian counsel for the Loan Parties, substantially in the form of Exhibit B-5 to the Restated Credit Agreement, (vi) Xxxxxxx XxXxxxxx Stirling Scales, Nova Scotia counsel for the Loan Parties, substantially in the form of Exhibit B-6 to the Restated Credit Agreement, (vii) Xxxxx Lovells, German counsel for the Loan Parties, substantially in the form of Exhibit B-7 to the Restated Credit Agreement, (viii) Macfarlanes, English counsel for the Loan Parties, substantially in the form of Exhibit B-8 to the Restated Credit Agreement, (ix) Xxxxxx and Calder, Irish counsel for the transactions contemplated hereby Loan Parties, substantially in the form of Exhibit B-9 to the Restated Credit Agreement, (x) DunnCox, Jamaican counsel for the Loan Parties, substantially in the form of Exhibit B-10 to the Restated Credit Agreement, (xi) BonelliErede, Italian counsel for the Loan Parties, substantially in the form of Exhibit B-11 to the Restated Credit Agreement, and (xii) Blackadders, Scottish counsel for the Loan Parties, substantially in the form of Exhibit B-12 to the Restated Credit Agreement, and in each case covering such other matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent shall have reasonably requestrequested. The Company hereby requests such counsels to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may have reasonably request requested relating to the organization, existence and good standing of the Borrowerinitial Loan Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counselcounsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(ed) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized the President, a Vice President or a Financial Officer of the BorrowerCompany, confirming compliance, after giving effect to this Agreement, compliance with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the representations and warranties set forth in Sections 7.4 and 7.15 of initial Loans under the Restated Credit Agreement, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (other than contingent indemnity obligations). If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon.
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) for the account of each Lender (including each New Lender but excluding the Departing Lender) that delivers its executed signature page to this Agreement by no later than the date and time specified by the Administrative Agent, an upfront fee in an amount equal to the applicable amount previously disclosed to the Lenders and (ii) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Company under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence Agreement. Upon the occurrence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Cimpress N.V.)
Conditions of Effectiveness. The effectiveness (a) This Amendment (other than Section 2) shall become effective as of the date (the “Signing Date”) the Administrative Agent shall have received (i) counterparts of this Amendment duly executed and delivered by authorized representatives of each Borrower, the Required Lenders and the Administrative Agent and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors. The Administrative Agent shall notify in writing the Company and the Lenders of the Signing Date, and such notice shall be conclusive and binding.
(b) Notwithstanding anything herein to the contrary, the provisions of Sections 1 and set forth in Section 2 of this Agreement (which Amendment shall be deemed to have occurred become effective as of 9:00 a.m. (New York time) on the date (the “Effective Date”) each of the following conditions precedent shall have been satisfied or waived satisfied:
(i) the “Effective Time”)) and Signing Date shall have occurred;
(ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender 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.
(b) The Administrative Agent shall have received counterparts of this Amendment duly executed legal and delivered by authorized representatives of each Lender, each Increasing Lender, the Augmenting Lender, each Issuing Bank and the Swingline Lender;
(iii) the Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (iA) Sxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx & Bxxxxxxx Xxxxxxx LLP, U.S. counsel to the BorrowerLoan Parties, (B) Ogier, Jersey counsel to the Loan Parties, (C) Xxxxx & XxXxxxxx Amsterdam N.V., Dutch counsel to the Loan Parties, (D) Xxxxx & XxXxxxxx Advokatbyra KB, Swedish counsel to the Loan Parties, (E) K&L Gates LLP, U.K. counsel to the Loan Parties, and (iiF) Dxxxxx Gxxxxxx PLLCXxxxxx X. Xxxxxx, special Michigan internal counsel to the BorrowerLoan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerLoan Parties, the Restated Credit AgreementLoan Documents, this Agreement Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request.. The Company hereby requests such counsel to deliver such opinions;
(civ) The Lenders the Administrative Agent shall have received satisfactory unaudited interim consolidated financial statements a certificate, dated the Effective Date and signed by a Responsible Officer of the Borrower for each quarterly period ended March 31Company, 2019certifying that, June 30after giving effect to this Amendment and any Borrowings on the Effective Date, 2019 (x) all of the representations and September 30, 2019.warranties of the Company set forth in the Credit Agreement (as amended hereby) are true and correct in all material respects (or in all respects if the applicable representation and warranty is qualified by materiality or Material Adverse Effect) and (y) no Default or Event of Default has occurred and is then continuing;
(dv) The the Administrative Agent shall have received such documents other documents, certificates and certificates other deliveries as the Administrative Agent or its counsel may reasonably request request, including, without limitation, relating to the organization, existence and good standing (or the equivalent in the applicable jurisdiction) of the BorrowerLoan Parties, and the authorization of the transactions contemplated herebyhereby and by the Credit Agreement and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby or thereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.; and
(evi) The the Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (ix) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers under the Existing Credit Agreement and the Restated Credit Agreement and Loan Documents, (iiy) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement.
Agreement and (gz) The Borrower shall have delivered all amounts (if any) owing by the Augmenting Lender and the Increasing Lenders pursuant to Section 2(b). If any LC Disbursements and/or Swingline Loans are outstanding as of the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Signing Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement))such LC Disbursements and/or Swingline Loans shall be repaid, in each case at least three (3) Business Days prior to the Restatement Effective Datetogether with any interest accrued thereon. The Administrative Agent shall notify in writing the Borrower Company and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding; provided that, notwithstanding the foregoing, Section 2 of this Amendment shall terminate and be of no force or effect if the foregoing conditions precedent set forth in this Section 3(b) shall not have been satisfied (or otherwise waived with the consent of the Administrative Agent and the Required Lenders) on or prior to 5:00 p.m. (New York time) on November 28, 2017.
Appears in 1 contract
Samples: Credit Agreement (LKQ Corp)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived Amendment (the “Amendment Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts of this Amendment duly executed by the BorrowerBorrowers, the Required Lenders under (including each existing Lender whose Revolving Facility Commitment is increasing pursuant to the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter terms of Credit Issuer (if anythis Amendment) and the Swingline Lender 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 AgreementAgent.
(b) The Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed legal opinions by the Subsidiary Loan Parties.
(c) The Administrative Agent shall have received amendment and/or confirmation agreements in respect of the existing Luxembourg pledge documentation in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Amendment Effective Date Date) of each of (i) Sxxxxxx Xxxxxxx Xxxxxx, Halter & Bxxxxxxx Xxxxxxxx LLP, counsel to for the BorrowerLoan Parties, and (ii) Dxxxxx Gxxxxxx PLLCLexField, special Michigan Luxembourg counsel to the Borrowerfor Chart Luxembourg and (iii) Xxxxx Day, special Hong Kong counsel for Chart Hong Kong, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerLoan Parties, the Restated Credit Agreement, Loan Documents this Agreement and Amendment or the transactions contemplated hereby Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(de) The Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the BorrowerBorrowers, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to the Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ef) The Administrative Agent shall have received a certificate, dated the Restatement Amendment Effective Date and signed by an Authorized the President, a Vice President or a Financial Officer of the BorrowerCompany, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs certifying (ai) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, that the representations and warranties set forth contained in Sections 7.4 and 7.15 Article III of the Restated Credit AgreementAgreement (as amended hereby) are true and correct in all material respects (or in all respects if the applicable representation or warranty is qualified by Material Adverse Effect or other materiality qualifier) on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects (or in all respects if the applicable representation or warranty is qualified by Material Adverse Effect or other materiality qualifier) as of such earlier date), and (ii) that no Event of Default or Default has occurred and is continuing as of such date.
(fg) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all for the account of each Lender that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, an amendment fee in an amount equal to the applicable amount previously disclosed to the Lenders and (ii) for the account of each Lender participating in the increase to the Commitments pursuant 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 applicable amount previously disclosed to the Lenders.
(h) The Administrative Agent shall have received payment and/or reimbursement of the Administrative Agent’s and its affiliates’ reasonable and documented out-of-pocket fees and other amounts due and payable on or prior to the Restatement Effective Date, expenses (including, to the extent invoiced at least two (2invoiced, reasonable fees and expenses of counsel for the Administrative Agent) Business Days prior to in connection with the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit AgreementLoan Documents.
(gi) The Borrower Administrative Agent shall have delivered to the Administrative Agentmade such reallocations, and directly to any Lender requesting the same sales, assignments or other relevant actions in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition respect of each Lender’s credit exposure under the Beneficial Ownership Regulations Credit Agreement as are necessary in order that each such Lender’s Revolving Facility Credit Exposure and outstanding Revolving Facility Loans hereunder reflects such Lender’s Revolving Facility Percentage of the outstanding aggregate Revolving Facility Credit Exposures under the Credit Agreement as amended hereby. The Borrowers hereby agree to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans and the reallocation described in this clause (as defined in the Restated Credit Agreement)i), in each case at least three (3) Business Days prior to on the Restatement Effective Date. The Administrative Agent shall notify terms and in the Borrower and the Lenders manner set forth in Section 2.16 of the Restatement Effective Date, and such notice shall be conclusive and bindingCredit Agreement.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Second Amendment shall become effective when, and only when, the Agent and each of (i) the provisions of Sections 1 and 2 Lenders shall have received a counterpart of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on Second Amendment executed by the date Company and the following conditions precedent Agent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreementadditionally received, in each case, shall be subject form and substance satisfactory to the satisfaction of Agent and the following conditions precedentLenders:
(a) The Administrative Agent (or its counsel) shall have received from A Note payable to each Lender duly executed by the Borrower, Company in the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter form of Credit Issuer (if any) and the Swingline Lender 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.Exhibit A hereto;
(b) The Administrative Agent shall have received An amendment to and reaffirmation of the Security Agreement duly executed legal opinions by the Company;
(addressed to c) A reaffirmation of the Administrative Agent Subsidiary Guaranty and the Lenders and dated the Restatement Effective DateSubsidiary Security Agreement duly executed by Covxxxxxx;
(d) A copy of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPresolutions, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent, of the Board of Directors of the Company authorizing the execution, delivery and performance by it of this Second Amendment, the Notes and the other documents delivered in connection herewith certified by the Secretary or an Assistant Secretary of the Company, which certificate shall state that the resolutions thereby certified are in full force and effect and have not been amended, modified, revoked or rescinded as of the date hereof;
(e) A certificate dated the date hereof of the Secretary or an Assistant Secretary of each of the Company and Covxxxxxx xxrtifying (i) as to the incumbency and signatures of its officers executing this Second Amendment, the Notes and the other documents delivered in connection herewith (as applicable) and (ii) that each of the certificate of incorporation and bylaws delivered in connection with the Existing Credit Agreement is in full force and effect and has not been amended, modified, revoked or rescinded as of the date hereof, together with evidence of the incumbency of such Secretary or Assistant Secretary;
(f) An executed legal opinion dated the date hereof and addressed to the Agent and covering such matters relating the Lenders, of Disxxxx Xxrxxx X'Xxxxxx & Casxxxxxxxx XXP, counsel to the BorrowerCompany and Covxxxxxx, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in xn a form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit AgreementAgent, the representations Lenders and warranties set forth in Sections 7.4 and 7.15 each of the Restated Credit Agreement).
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.their special counsel;
Appears in 1 contract
Samples: Credit Agreement (Memberworks Inc)
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which This Amendment shall be deemed to have occurred as of 9:00 a.m. (New York time) become effective on the date the following conditions precedent shall have been satisfied or waived hereof (the “Amendment No. 2 Effective TimeDate”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from counterparts to this Amendment, duly executed by each of the Borrower, the Lenders under the Existing each Bank providing New Revolving Credit AgreementCommitments and/or New Initial Term Loan Commitments (collectively, the Resigning “Amendment No. 2 Banks”), the Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Issuing Bank and the Swingline Lender either a counterpart of this Agreement signed on behalf of such party Bank (or written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic telecopy transmission of a signed signature page of this AgreementAmendment) that such party has signed a counterpart of this Agreement.Amendment);
(b) The Administrative Agent shall have received executed legal opinions a customary opinion (addressed to the Administrative Agent and the Lenders Amendment No. 2 Banks and dated the Restatement Amendment No. 2 Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx Xxxxxx Xxxxxx LLP, counsel to for the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerAgent; provided, the Restated Credit Agreementhowever, this Agreement and the transactions contemplated hereby as the Administrative Agent agrees that an opinion delivered by Xxxxxx Xxxxxx LLP in form and substance substantially similar to the opinion delivered by Xxxxxx Xxxxxx LLP (with customary updates) on the Amendment No. 1 Effective Date shall be reasonably request.acceptable;
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such all documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the corporate authority for and the authorization validity of the transactions contemplated herebyAmendment and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent; provided, however, the Administrative Agent agrees that applicable documentation delivered in form and substance (with conforming updates for this Amendment) substantially similar to those delivered by the Borrower on the Amendment No. 1 Effective Date shall be reasonably acceptable;
(d) The Administrative Agent shall have received, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and any Bank delivers a written request to the Borrower at least ten (10) days prior to the Amendment No. 2 Effective Date, then the Administrative Agent and the Banks shall have received at least five (5) days prior to the Amendment No. 2 Effective Date, and be reasonably satisfied in form and substance with, a Beneficial Ownership Certification in relation to the Borrower (provided that upon the execution and delivery by such Bank of its counsel.signature page to this Amendment, the condition set forth in this clause (d) shall be deemed to be satisfied);
(e) The Administrative Agent shall have received a certificatereceived, dated upon the Restatement reasonable request of any Bank made in writing at least ten (10) days prior to the Amendment No. 2 Effective Date Date, the Borrower shall have provided to such Bank, and signed by an Authorized Officer of such Bank shall be reasonably satisfied with, the Borrowerdocumentation and other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreementwithout limitation, the representations and warranties set forth Patriot Act, in Sections 7.4 and 7.15 of each case at least five (5) days prior to the Restated Credit Agreement).Amendment No. 2 Effective Date; and
(f) The Administrative Agent (or the Resigning Administrative Agent, as applicable) shall have received (ior shall, substantially concurrently with the funding of the New Initial Term Loans, receive) all fees and other amounts due and payable on or prior to the Restatement Amendment No. 2 Effective Date, including, to the extent invoiced at least Date for which invoices have been presented two (2) Business Days prior to the Restatement Amendment No. 2 Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by including, without limitation, the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid upfront fees under Section 4.1 of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower and the Lenders Administrative Agent have agreed to pay to each Amendment No. 2 Bank which, at the Company’s option, may be net funded with the proceeds of the Restatement Effective Date, and such notice shall be conclusive and binding.Initial Term Loans and/or Revolving Loans funded on the Amendment No. 2
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this This Agreement (which shall be deemed to have occurred become effective as of 9:00 a.m. the date (New York timethe “First Restatement Effective Date”) on the date which the following conditions precedent shall have been satisfied (or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be subject to the satisfaction of the following conditions precedent:waived):
(a) The Administrative Agent (or its counsel) Agents shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart counterparts of this Agreement signed executed by the Borrowers and the Lenders prior to, 5:00 p.m., New York City time on behalf of such party or written evidence satisfactory to April 30, 2015 (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.“Consent Deadline”);
(b) The Administrative Agent shall have received executed legal opinions (addressed After giving effect to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.
(c) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 Article 5 of the Restated Credit Agreement (as amended, restated and modified by this Agreement).) are true and correct in all material respects as of the First Restatement Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and immediately prior to and after giving effect to the First Restatement Effective Date, no Default or Event of Default shall have occurred and be continuing;
(c) The Administrative Agents shall have received a legal opinion of Xxxxxx Xxxx & Xxxxxxxx LLP, counsel to the Borrower Parties, addressed to the Lender Group and reasonably satisfactory to the Administrative Agents;
(d) The Administrative Agents shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Agreement;
(e) The Administrative Agents shall have received a certificate of the secretary or an assistant secretary of the Administrative Borrower confirming compliance with the conditions precedent set forth in clause (b) of this Section 4; and
(f) The Borrowers shall have paid all reasonable and documented costs and expenses of the Administrative Agent Agents in connection with this Agreement (or including the Resigning Administrative Agentreasonable and documented fees, disbursements and other charges of Shearman & Sterling LLP, as applicable) shall have received (i) all fees and other amounts due and payable on or prior counsel to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit AgreementAdministrative Agents).
(g) The Borrower Administrative Agents shall have delivered to received, for the Administrative Agent, and directly to any ratable account of each 2021 Term Loan Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the First Amended and Restated Credit Agreement) in relation that consents to it (or this Agreement, a certification or written confirmation that non-refundable upfront fee equal to 0.25% of the Borrower qualifies for an express exclusion from aggregate principal amount of the “legal entity customer” definition under the Beneficial Ownership Regulations outstanding 2021 Term Loans (as defined in the First Amended and Restated Credit Agreement)), in each case at least three (3) Business Days prior to as of the First Restatement Effective DateDate (the “Upfront Fee”). The Administrative Agent shall notify At the Borrower and the Lenders option of the Restatement Effective DateAdministrative Agents, and such notice shall the Upfront Fee may be conclusive and bindingstructured as original issue discount.
Appears in 1 contract
Samples: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. The effectiveness obligations of (i) Administrative Agent and the provisions of Sections 1 and 2 of this Agreement (which shall be deemed Lenders to have occurred as of 9:00 a.m. (New York time) on amend the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, shall be as provided herein are subject to the satisfaction fulfillment of the following conditions precedent:
(a) The Borrower, Parent and each Lender shall have delivered to Administrative Agent (or its counsel) shall have received from the Borrower, the Lenders under the Existing Credit Agreement, the Resigning Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) and the Swingline Lender either a counterpart multiple duly executed counterparts 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.Amendment;
(b) The Borrower shall have delivered to Administrative Agent (i) duly executed and notarized Security Instruments, or amendments and supplements thereto, in sufficient counterparts for recordation in each relevant county and parish, as Administrative Agent may reasonably request to evidence the amendment to the Maturity Date herein and otherwise comply with the terms of the Intercreditor Agreement, (ii) a duly executed and effective Fee Letter, in form and substance satisfactory to the Lenders and (iii) a fully executed and effective copy of the Fourth Amendment to First Lien Credit Agreement;
(c) Borrower shall have delivered to Administrative Agent evidence, reasonably satisfactory to Administrative Agent, that the Mortgaged Properties represent at least 80% of the total value of the Proved Oil and Gas Properties evaluated in the most recently completed Reserve Report after giving effect to exploration and production activities, acquisitions, dispositions and production;
(d) Administrative Agent shall have received a fully executed legal opinions (addressed and effective copy of the Consent to the Intercreditor Agreement dated as of even date herewith, executed by and between Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLPFirst Lien Agent, counsel to the Borrower, and (ii) Dxxxxx Gxxxxxx PLLC, special Michigan counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Borrower, the Restated Credit Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request.Agent;
(ce) The Lenders shall have received satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended March 31, 2019, June 30, 2019 and September 30, 2019.
(d) The Administrative Agent shall have received such documents all fees, expenses and certificates as the Administrative Agent or its counsel may reasonably request relating other amounts due and owing to the organization, existence and good standing of the Borrower, and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.the Lenders under the Fee Letter referenced above and the Loan Documents, including, without limitation, the amounts described more fully in Section 6 hereof;
(ef) The Administrative Agent shall have received a certificate, dated certificate of the Restatement Effective Date and signed by Secretary or an Authorized Assistant Secretary or a Responsible Officer of Borrower and Parent setting forth (i) resolutions of its board of directors or managers or other relevant governing body with respect to the Borrowerauthorization of such Person to execute and deliver this Amendment and to enter into the transactions contemplated by this Amendment, confirming compliance(ii) the officers of such Person who are authorized to sign this Amendment on behalf of such Person and specimen signatures of such authorized officers, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (biii) the articles or certificate of Section 6.2 of the Restated Credit Agreement (includinglimited partnership, for purposes of Section 6.2(a)(ii) of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Administrative Agent (formation or the Resigning Administrative Agentincorporation, as applicable) shall have received (i) all fees , and the limited partnership agreement, operating agreement, bylaws or other amounts due governing document, as applicable, of such Person, certified as being true and payable complete, each of which certifications may, if applicable, be by reference to previously-delivered certificates of any such officer. Administrative Agent and the Lenders may conclusively rely on such certificates until Administrative Agent receives notice in writing from the Borrower or prior to the Restatement Effective DateParent, includingas applicable, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement and the Restated Credit Agreement and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 of the Existing Credit Agreement.contrary;
(g) The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same in a written notice to the Borrower at least 10 days prior to the Restatement Effective Date, a Beneficial Ownership Certification (as defined in the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of Borrower and the Lenders Parent;
(h) no Material Adverse Effect shall have occurred; and
(i) no Default or Event of the Restatement Effective Date, and such notice Default shall be conclusive and bindinghave occurred.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of (i) the provisions of Sections 1 and 2 of this Agreement (which shall be deemed to have occurred as of 9:00 a.m. (New York time) on the date the following conditions precedent shall have been satisfied or waived (the “Effective Time”)) and (ii) the amendment and restatement of the Existing Credit Agreement pursuant to Section 1 or Section 2 of this Agreement and the amendments to the Guarantee and Collateral Agreement pursuant to Section 3 of this Agreement, which shall be deemed to have occurred on the Restatement Effective Date immediately following the effectiveness of the provisions of Sections 1 and 2 of this Agreement, in each case, Agreement shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from each of the BorrowerBorrowers, the Subsidiary Guarantors, the Lenders under the Existing Credit Agreement, each New Lender, the Resigning Additional Term Lenders, the Administrative Agent, the Successor Administrative Agent, each Letter of Credit Issuer (if any) Issuing Bank and the Swingline Lender 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.
(b) The Administrative Agent shall have received executed legal favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of (i) Sxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx & Bxxxxxxx Xxxxxxx LLP, U.S. counsel to the BorrowerLoan Parties, (ii) Dentons, Canadian counsel to the Loan Parties, (iii) K&L Gates LLP, U.K. counsel to the Loan Parties, (iv) Xxxxx & XxXxxxxx Amsterdam N.V., Dutch counsel to the Loan Parties, and (iiv) Dxxxxx Gxxxxxx PLLCXxxxxx X. Xxxxxx, special Michigan internal counsel to the BorrowerLoan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the BorrowerLoan Parties, the Restated Credit AgreementLoan Documents, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(c) The Lenders shall have received (i) satisfactory unaudited interim consolidated financial statements of the Borrower Company for each quarterly period ended March subsequent to December 31, 20192012 so long as such financial statements are publicly available and (ii) satisfactory financial statement projections through and including the Company’s 2017 fiscal year, June 30together with such information as the Administrative Agent and the Lenders shall reasonably request (including, 2019 and September 30without limitation, 2019a detailed description of the assumptions used in preparing such projections).
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing (or the equivalent in the applicable jurisdiction) of the BorrowerLoan Parties, and the authorization of the transactions contemplated herebyTransactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by an Authorized a Responsible Officer of the BorrowerCompany, confirming compliance, after giving effect to this Agreement, with the conditions set forth in paragraphs (a) and (b) of Section 6.2 of the Restated Credit Agreement (including, for purposes of Section 6.2(a)(ii) 4.02 of the Restated Credit Agreement, the representations and warranties set forth in Sections 7.4 and 7.15 of the Restated Credit Agreement).
(f) The Company and the other Loan Parties that have granted security interests in the Collateral prior to the date of this Agreement shall have provided the Administrative Agent or its counsel documents and instruments to create and/or evidence first priority security interests in the Collateral in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(g) The Administrative Agent shall have received evidence satisfactory to it that any Letters of Credit issued pursuant to the Existing Credit Agreement by any Person that is not a Lender under the Restated Credit Agreement shall have been replaced, terminated or otherwise supported on terms and conditions acceptable to the Resigning Administrative Agent, as applicable.
(h) The Administrative Agent shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Restatement Effective Dateinvoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower Borrowers under the Existing Credit Agreement and the Restated Credit Agreement Loan Documents and (ii) evidence of payment of all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Section 4.1 Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement.
(g) The Borrower shall have delivered to the Administrative Agent, and directly to . If any Lender requesting the same in a written notice to the Borrower at least 10 days prior to LC Disbursements and/or Swingline Loans are outstanding as of the Restatement Effective Date, such LC Disbursements and/or Swingline Loans shall be repaid, together with any interest accrued thereon. Notwithstanding anything in this Agreement or the Existing Credit Agreement to the contrary, the Borrowers shall not be required to compensate the Lenders pursuant to Section 2.16 of the Existing Credit Agreement for any loss, cost or expense incurred by the Lenders as a Beneficial Ownership Certification (as defined result of the amendment and restatement of the Existing Credit Agreement or the re-evidencing of the Existing Loans, in each case pursuant to the terms of this Agreement and the Restated Credit Agreement) in relation to it (or a certification or written confirmation that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations (as defined in the Restated Credit Agreement)), in each case at least three (3) Business Days prior to the Restatement Effective Date. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
