Conditions Precedent to Incremental Term Loans. The obligations of the Incremental Lenders to make the Incremental Term Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived by each of the Incremental Lenders then having an Incremental Term Commitment): (a) The Administrative Agent (or, in the case of clause (ii) below, its counsel) shall have received (i) from the Borrower, at or prior to 1:00 p.m., New York City time, two (2) Business Days prior to the Incremental Term Effective Date, a Committed Loan Notice with respect to the Borrowing of the Incremental Term Loans pursuant to which the Borrower agrees that the provisions of Section 3.05 of the Credit Agreement shall apply to any failure by the Borrower to borrow the Incremental Term Loans on the Incremental Term Effective Date and (ii) from each party hereto, either (A) a counterpart of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission (including Adobe pdf file) of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment. (b) The Administrative Agent shall have received an opinion from Xxxxxxx Xxxx LLP New York counsel to the Loan Parties, substantially in the form of Exhibit B-1, and an opinion from Xxxxxxx Xxxxx Boult Xxxxxxxx LLP substantially in the form of Exhibit B-2. (c) The Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and any other Loan Documents to which such Loan Party is a party or is to be a party to be signed on or after the Incremental Term Effective Date. (d) The representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Term 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 (after giving effect to any qualification therein) in all respects on such respective dates. (e) No Default shall exist or would result from the making of the Incremental Term Loans or from the application of the proceeds therefrom. (f) All fees and expenses required to be paid hereunder (or under any other agreement entered into by the Administrative Agent, the Arranger, TPG Capital BD, LLC or any of their respective Affiliates) and invoiced at least three (3) Business Days prior to the Incremental Term Effective Date shall have been paid in full in cash. (g) The Arranger shall have received on or prior to the Incremental Term Effective Date all documentation and other information reasonably requested in writing by them at least five Business Days prior to the Incremental Term Effective Date in order to allow the Arranger, the Agent and the Incremental Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (h) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, certifying as to the solvency of the Borrower and the Subsidiaries on a consolidated basis after giving effect to the Amendment Transactions to occur on the Incremental Term Effective Date. (i) The reaffirmation attached to this Amendment as Exhibit A has been duly authorized, executed and delivered by a duly authorized officer of each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law. (j) The Administrative Agent shall have received from the Borrower a completed Perfection Certificate dated as of the Incremental Term Effective Date, together will all attachments contemplated thereby. The Request for Credit Extension under Section 4(a)(i) hereof shall be deemed to be a representation and warranty that the conditions specified in Sections 4(d) and 4(e) hereof have been satisfied on and as of the Incremental Term Effective Date.
Appears in 1 contract
Conditions Precedent to Incremental Term Loans. The obligations of the Incremental Lenders to make the Incremental Term Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived by each of the Incremental Lenders then having an Incremental Term Commitment):
(a) The Administrative Agent (or, in the case of clause (ii) below, its counsel) shall have received (i) from the Borrower, at or prior to 1:00 p.m., New York City time, two (2) Business Days prior to the Incremental Term Effective Datetime required by Section 2.12 of the Credit Agreement, a Committed Loan Notice written notice with respect to the Borrowing of the Incremental Term Loans pursuant to which the Borrower agrees that the provisions of Section 3.05 in accordance with Sections 2.02 and 2.12 of the Credit Agreement shall apply to any failure by the Borrower to borrow the Incremental Term Loans on the Incremental Term Effective Date and (ii) from each party of the Parent, the Borrowers and the Incremental Lenders set forth on Schedule 1 hereto, either (A) a counterpart of this Amendment signed on behalf of by such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission (including Adobe pdf file) of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendmentparty.
(b) The Administrative Agent shall have received an opinion from Xxxxxxx Xxxx LLP (i) New York counsel to the Loan PartiesParties (which shall be Xxxxxx & Xxxxxx LLP or another law firm reasonably acceptable to the Administrative Agent), substantially in the form of Exhibit B-1, and an opinion from Xxxxxxx Xxxxx Boult covering such matters as the Administrative Agent may reasonably request, (ii) Xxxxxxxx Islands counsel to the Loan Parties (which shall be Xxxxxx & Xxxxxx LLP substantially in or another law firm qualified to render an opinion as to Xxxxxxxx Islands law reasonably acceptable to the form Administrative Agent), an opinion covering such matters as the Administrative Agent may reasonably request, (iii) Netherlands counsel to the Loan Parties (which shall be Loyens & Loeff N.V. or another law firm qualified to render an opinion as to the law of Exhibit B-2the Netherlands reasonably acceptable to the Administrative Agent), an opinion covering such matters as the Administrative Agent may reasonably request and (iv) Greece counsel to the Loan Parties (which shall be Deverakis Law Office or another law firm qualified to render an opinion as to the law of Greece reasonably acceptable to the Administrative Agent), an opinion covering such matters as the Administrative Agent may reasonably request, each such opinion to be addressed to the Pari Passu Collateral Agent, the Administrative Agent and the Lenders (and expressly permitting reliance by permitted successors and assigns of the addressees thereof) and dated as of the Incremental Effective Date.
(c) The Administrative Agent shall have received such certificates a certificate, dated the Incremental Effective Date and reasonably acceptable to the Administrative Agent, signed by an Authorized Representative of resolutions or other actioneach Loan Party, certifying (i) as to the incumbency certificates and/or other certificates and genuineness of Responsible Officers the signature of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with executing this Amendment or a written confirmation pursuant to Section 3(k) and any (ii) that attached thereto are true, correct and complete copies of (1) the articles or certificate of incorporation, formation or other organizational document, as applicable, of such Loan Documents to which Party, and all amendments thereto, certified as of a recent date by the appropriate governmental officials in its jurisdiction of incorporation or formation, as applicable, (2) the bylaws or other governing documents, as applicable, of such Loan Party is a party or is to be a party to be signed as in effect on or after the Incremental Term Effective DateDate and (3) with respect to each Loan Party executing this Amendment, resolutions duly authorized by the board of directors (or other governing body) of such Loan Party authorizing and approving the execution and delivery of, and performance under, this Amendment.
(d) The Administrative Agent shall have received a certificate, dated the Incremental Effective Date, and signed on behalf of the Borrowers by an Authorized Representative of the Borrowers certifying that clauses (e), (f) and (g) of this Section 3 have been satisfied on such date.
(e) On the Incremental Effective Date, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the transactions contemplated hereby or otherwise referred to herein.
(f) The representations and warranties set forth in Section 4 of the Borrower and each other Loan Party contained this Amendment, in Article V Section 6 of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Term Effective Date; provided thatDate with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, 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.
(eg) No Default shall exist or would result from At the making time of and immediately after the Borrowing of the Incremental Term Loans on the Incremental Effective Date, no Default or from the application Event of the proceeds therefromDefault shall have occurred and be continuing.
(fh) All The Borrowers shall have paid all fees that are due and expenses required to be paid payable hereunder (or under any other agreement entered into by the Administrative Agent, the any Arranger, TPG Capital BDthe Incremental Lenders, LLC the Parent or any of their respective Affiliates) and invoiced at least three (3) Business Days prior to ), which fees may be offset against the Incremental Term Effective Date shall have been paid in full in cashproceeds of the Loans.
(gi) The Arranger Each Loan Party shall have received on or prior to provided the Incremental Term Effective Date all documentation and other information reasonably requested in writing by them at least five Business Days prior to the Incremental Term Effective Date in order to allow the Arranger, the Administrative Agent and the Incremental Lenders to comply with that are required by regulatory authorities under the applicable “"know your customer” " and anti-money laundering rules and regulations, including the USA PATRIOT Act.
, at least five (h5) The Administrative Agent shall have received a certificate from a Responsible Officer Business Days in advance of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, certifying as to the solvency of the Borrower and the Subsidiaries on a consolidated basis after giving effect to the Amendment Transactions to occur on the Incremental Term Effective Date.
(i) The reaffirmation attached to this Amendment as Exhibit A has been duly authorized, executed and delivered by a duly authorized officer of each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law.
(j) The Administrative Agent shall have received a certificate from the Borrower a completed Perfection Certificate dated as chief financial officer or chief executive officer of the Parent, in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each of the Incremental Term Lenders and dated the Incremental Effective Date, together will all attachments contemplated thereby. The Request for Credit Extension under Section 4(a)(i) hereof shall be deemed to be a representation and warranty that the conditions specified in Sections 4(d) and 4(e) hereof have been satisfied certifying that, on and as of the Incremental Term Effective Date, and after giving effect to the transactions contemplated hereby and the Liens created by the Loan Parties in connection herewith, (i) the sum of the assets, at a fair valuation, of the Loan Parties on a consolidated basis will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Loan Parties on a consolidated basis, (ii) the Loan Parties on a consolidated basis have not incurred and do not intend to incur, and do not believe that they will incur, debts beyond their ability to pay such debts as such debts mature, (iii) the Loan Parties on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Incremental Effective Date and (iv) the Loan Parties, taken as a whole, are not otherwise insolvent under the standards set forth in applicable law.
(k) Each Loan Party shall have entered into a written instrument reasonably satisfactory to the Administrative Agent pursuant to which it confirms that it consents to this Amendment and that the Collateral Agreements to which it is a party will continue to apply in respect of the Credit Agreement and the Pari Passu Obligations of such Loan Party.
Appears in 1 contract
Conditions Precedent to Incremental Term Loans. The obligations of the This Amendment, and each Incremental Lenders Amendment Additional Term Lender’s obligation to make provide the Incremental Term Loans hereunder on the Incremental Amendment Effective Date, shall not become effective until be subject to the date on which each satisfaction or waiver of the following conditions is satisfied (or waived by each of the Incremental Lenders then having an Incremental Term Commitment):precedent:
(a) The Administrative Agent (or, in the case of clause (ii) below, or its counsel) shall have received (i) from Holdings, the Borrower, at or prior to 1:00 p.m., New York City time, two (2) Business Days prior to the each other Loan Party and each Incremental Amendment Additional Term Effective Date, a Committed Loan Notice with respect to the Borrowing of the Incremental Term Loans pursuant to which the Borrower agrees that the provisions of Section 3.05 of the Credit Agreement shall apply to any failure by the Borrower to borrow the Incremental Term Loans on the Incremental Term Effective Date and (ii) from each party hereto, Lender either (Ai) a counterpart of this Amendment Agreement signed on behalf of such party or (Bii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission (including Adobe pdf file) of a signed signature page counterpart of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received an a written opinion from Xxxxxxx Xxxx LLP (addressed to the Administrative Agent and the Lenders (including, without limitation, the Incremental Amendment Additional Term Lenders) and dated the Incremental Amendment Effective Date) of each of (i) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York counsel to for the Loan Parties, substantially (ii) Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel for the Loan Parties, (iii) Durham, Xxxxx & Xxxxxxx P.C., Utah counsel for the Loan Parties, (iv) Xxxxxxx Xxxxxxx Xxxxxx LLP, Florida counsel for the Loan Parties and (v) Xxxxxxxx Xxxxxxx LLP, Georgia counsel for the Loan Parties, in form and substance reasonably satisfactory to the form Administrative Agent. Each of Exhibit B-1, Holdings and an opinion from Xxxxxxx Xxxxx Boult Xxxxxxxx LLP substantially in the form of Exhibit B-2Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers a certificate of each Loan Party as Party, dated the Incremental Amendment Effective Date, substantially in the form of Exhibit H to the Credit Agreement with appropriate insertions, or otherwise in form and substance reasonably satisfactory to the Administrative Agent may reasonably require evidencing the identityAgent, authority and capacity of each executed by any Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and any other Loan Documents to which of such Loan Party is a party Party, and including or is attaching the documents or certifications, as applicable, referred to be a party to be signed on or after the Incremental Term Effective Datein paragraph (d) of this Section.
(d) The representations Administrative Agent shall have received (i) as to each Loan Party, either (x) a copy of each Organizational Document of such Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority or (y) written certification by such Loan Party’s secretary, assistant secretary or other Responsible Officer that such Loan Party’s Organizational Documents most recently certified and warranties delivered to the Administrative Agent prior to the Incremental Amendment Effective Date pursuant to the Loan Documents remain in full force and effect on the Incremental Amendment Effective Date without modification or amendment since such original delivery, (ii) as to each Loan Party, either (x) signature and incumbency certificates of the Borrower and each other Responsible Officers of such Loan Party contained in Article V of executing the Credit Agreement and the other Loan Documents shall be to which it is a party or (y) written certification by such Loan Party’s secretary, assistant secretary or other Responsible Officer that such Loan Party’s signature and incumbency certificates most recently delivered to the Administrative Agent prior to the Incremental Amendment Effective Date pursuant to the Loan Documents remain true and correct in all material respects on and as of the Incremental Term Amendment Effective Date; provided that, (iii) copies of resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution and delivery, as applicable, and performance of the Loan Documents to which it is a party, certified as of the Incremental Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent that such representations and warranties specifically refer to an earlier dateconcept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, they shall be true and correct in all material respects organization or formation as of such earlier a reasonably recent 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 (after giving effect to any qualification therein) in all respects on such respective dates.
(e) No Default The Administrative Agent shall exist or would result from have received all fees and other amounts (which may, at the making of Administrative Agent’s option in consultation with the Borrower, be offset against the Incremental Term Loans or from made on the application of Incremental Amendment Effective Date) previously agreed in writing by the proceeds therefrom.
(f) All fees Incremental Amendment Arrangers and expenses required the Borrower to be paid hereunder (due and payable on or under any other agreement entered into by prior to the Administrative AgentIncremental Amendment Effective Date, including, to the Arranger, TPG Capital BD, LLC or any of their respective Affiliates) and extent invoiced at least three (3) Business Days prior to the Incremental Term Amendment Effective Date Date, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party.
(f) The Administrative Agent shall have been paid in full in cashreceived a certificate from the chief financial officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(g) The Arranger Administrative Agent and the Incremental Amendment Arrangers shall have received on or prior to the Incremental Term Effective Date all documentation and other information reasonably requested in writing by them received, at least five three (3) Business Days prior to the Incremental Term Amendment Effective Date, all documentation and other information about the Borrower and the other Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days prior to the Incremental Amendment Effective Date in order to allow by the Arranger, the Administrative Agent and or the Incremental Lenders to comply with Amendment Arrangers that they 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 USA PATRIOT Act.
(h) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower, in form and substance reasonably satisfactory Borrowing Request with respect to the Administrative Agent, certifying as to the solvency of the Borrower and the Subsidiaries on a consolidated basis after giving effect to the Amendment Transactions to occur on the Incremental Term Loans not later than 2:00pm, New York City time, one Business Day before the Incremental Amendment Effective DateDate and otherwise in accordance with the requirements of Section 2.03 of the Credit Agreement.
(i) The reaffirmation attached Each of the conditions set forth in Section 4.02 (Each Credit Event) of the Credit Agreement shall have been satisfied or waived (it being understood that all references to this “the date of such Borrowing” in Section 4.02 of the Credit Agreement shall be deemed to refer to the Incremental Amendment as Exhibit A has been duly authorized, executed and delivered by a duly authorized officer of each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law.
(j) Effective Date). The Administrative Agent shall have received from notify Holdings, the Borrower a completed Perfection Certificate dated as and the Lenders of the Incremental Term Amendment Effective Date, together will all attachments contemplated thereby. The Request for Credit Extension under Section 4(a)(i) hereof and such notice shall be deemed to be a representation conclusive and warranty that the conditions specified in Sections 4(d) and 4(e) hereof have been satisfied on and as of the Incremental Term Effective Datebinding.
Appears in 1 contract
Samples: Credit Agreement (Endurance International Group Holdings, Inc.)
Conditions Precedent to Incremental Term Loans. The obligations obligation of the Incremental Lenders Term Lender to make the Incremental Term Loans hereunder on the Effective Date shall not become effective until be subject to the date on which each satisfaction of the following conditions is satisfied (or waived by each of the Incremental Lenders then having an Incremental Term Commitment):precedent:
(a) The Administrative Agent (or, in On the case of clause (ii) below, its counsel) shall have received (i) from the Borrower, at or prior to 1:00 p.m., New York City time, two (2) Business Days prior to the Incremental Term Effective Date, a Committed Loan Notice with respect to the Borrowing each of the Incremental Term Loans pursuant to which the Borrower agrees that the provisions conditions set forth in paragraphs (b) and (c) of Section 3.05 4.01 of the Credit Agreement shall apply be satisfied and the Administrative Agent shall have received a certificate to any failure by that effect dated as of the Borrower to borrow the Incremental Term Loans on the Incremental Term Effective Date and (ii) from each party hereto, either (A) executed by a counterpart Financial Officer of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission (including Adobe pdf file) of a signed signature page of this Amendment) that such party has signed a counterpart of this AmendmentBorrower.
(b) The Administrative Agent shall have received an opinion from Xxxxxxx Xxxx LLP New York counsel (with sufficient copies for each Incremental Term Lender) such board resolutions and other closing certificates and documentation as shall be reasonably required by the Incremental Term Lender, in each case consistent with those delivered on the Closing Date under clauses (c) and (d) of Section 4.02 of the Credit Agreement; provided that, it shall not be a condition precedent to the Incremental Term Lender’s obligation to make an Incremental Term Loan Partieson the Effective Date that (A) the Administrative Agent shall have received a certificate of good standing for each Loan Party consistent with those delivered on the Closing Date under clause (c)(i) of Section 4.02 of the Credit Agreement or (B) any secretary’s certificate delivered hereunder consistent with those delivered on the Closing Date certify that there has been no amendment to the certificate or articles of incorporation of the applicable Loan Party since the last amendment shown on a certificate of good standing; provided, substantially in however, that any secretary’s certificate delivered hereunder shall certify that the form certificate or articles of Exhibit B-1, and an opinion from Xxxxxxx Xxxxx Boult Xxxxxxxx LLP substantially in incorporation delivered hereunder of the form applicable Loan Party have not been amended since the most recent amendment to such certificate or articles of Exhibit B-2incorporation delivered hereunder.
(c) The Administrative Agent shall have received such certificates of resolutions or other actiona certificate, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as dated the Administrative Agent may reasonably require evidencing the identity, authority Effective Date and capacity of each Responsible executed by a Financial Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and any other Loan Documents to which such Loan Party is a party or is to be a party to be signed on or after the Incremental Term Effective Date.
(d) The representations and warranties of the Borrower, confirming that the Borrower and each other Loan Party contained will be in Article V of the Credit Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Term 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 (Pro Forma Compliance after giving effect to any qualification therein) in all respects on such respective dates.
(e) No Default shall exist or would result from the making of the Incremental Term Loans or from on the Effective Date and the application of the proceeds therefrom.
(f) All fees and expenses required to be paid hereunder (or under any other agreement entered into by the Administrative Agent, the Arranger, TPG Capital BD, LLC or any of their respective Affiliates) and invoiced at least three (3) Business Days prior to the Incremental Term Effective Date shall have been paid in full in cash.
(g) The Arranger shall have received on or prior to the Incremental Term Effective Date all documentation and other information reasonably requested in writing by them at least five Business Days prior to the Incremental Term Effective Date in order to allow the Arranger, the Agent and the Incremental Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(hd) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower, in form all fees and substance reasonably satisfactory other amounts due and payable on or prior to the Administrative Agent, certifying as to the solvency of the Borrower and the Subsidiaries on a consolidated basis after giving effect to the Amendment Transactions to occur on the Incremental Term Effective Date.
(i) The reaffirmation attached to this Amendment as Exhibit A has been duly authorized, executed and delivered by a duly authorized officer of each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law.
(j) The Administrative Agent shall have received from the Borrower a completed Perfection Certificate dated as of the Incremental Term Effective Date, together will including, to the extent invoiced, reimbursement or payment of all attachments contemplated thereby. The Request for Credit Extension under Section 4(a)(i) hereof shall be deemed out-of-pocket expenses required to be a representation and warranty that reimbursed or paid by the conditions specified in Sections 4(d) and 4(e) hereof have been satisfied on and as of the Incremental Term Effective DateBorrower hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Incremental Term Loan Assumption Agreement (Alion Science & Technology Corp)
Conditions Precedent to Incremental Term Loans. The obligations obligation of the Incremental Term Lenders to make the Incremental Term Loans hereunder on the Amendment No. 3 Effective Date shall not become effective until be subject to the date on which each satisfaction of the following conditions is satisfied (or waived by each of the Incremental Lenders then having an Incremental Term Commitment):precedent:
(a) The Administrative Agent (or, in On the case of clause (ii) below, its counsel) shall have received (i) from the Borrower, at or prior to 1:00 p.m., New York City time, two (2) Business Days prior to the Incremental Term Amendment No. 3 Effective Date, a Committed Loan Notice with respect to the Borrowing each of the Incremental Term Loans pursuant to which the Borrower agrees that the provisions conditions set forth in paragraphs (b) and (c) of Section 3.05 4.01 of the Credit Agreement shall apply be satisfied and the Administrative Agent shall have received a certificate to any failure by that effect dated as of the Borrower to borrow the Incremental Term Loans on the Incremental Term Amendment No. 3 Effective Date and (ii) from each party hereto, either (A) executed by a counterpart Financial Officer of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission (including Adobe pdf file) of a signed signature page of this Amendment) that such party has signed a counterpart of this AmendmentBorrower.
(b) The Administrative Agent shall have received an opinion from Xxxxxxx Xxxx LLP New York counsel to (with sufficient copies for each Incremental Term Lender) such legal opinions, board resolutions and other closing certificates and documentation as shall be reasonably required by the Loan PartiesIncremental Term Lenders, substantially in each case consistent with those delivered on the form Closing Date under clauses (a), (c) and (d) of Exhibit B-1, and an opinion from Xxxxxxx Xxxxx Boult Xxxxxxxx LLP substantially in Section 4.02 of the form of Exhibit B-2Credit Agreement.
(c) The Administrative Agent shall have received such certificates of resolutions or other actiona certificate, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as dated the Administrative Agent may reasonably require evidencing the identity, authority Amendment No. 3 Effective Date and capacity of each Responsible executed by a Financial Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and any other Loan Documents to which such Loan Party is a party or is to be a party to be signed on or after the Incremental Term Effective Date.
(d) The representations and warranties of the Borrower, confirming that the Borrower and each other Loan Party contained will be in Article V of the Credit Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Term 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 (Pro Forma Compliance after giving effect to any qualification therein) in all respects on such respective dates.
(e) No Default shall exist or would result from the Anteon Asset Purchase, the making of the Incremental Term Loans or from on the Amendment No. 3 Effective Date and the application of the proceeds therefrom.
(f) All fees and expenses required to be paid hereunder (or under any other agreement entered into by the Administrative Agent, the Arranger, TPG Capital BD, LLC or any of their respective Affiliates) and invoiced at least three (3) Business Days prior to the Incremental Term Effective Date shall have been paid in full in cash.
(g) The Arranger shall have received on or prior to the Incremental Term Effective Date all documentation and other information reasonably requested in writing by them at least five Business Days prior to the Incremental Term Effective Date in order to allow the Arranger, the Agent and the Incremental Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(hd) The Administrative Agent shall have received a certificate from a Responsible Officer all fees and other amounts due and payable on or prior to the Amendment No. 3 Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(e) The Anteon Asset Purchase shall be consummated simultaneously with the borrowing of the BorrowerIncremental Term Loans in accordance with applicable law and on the terms described in the Anteon Asset Purchase Agreement, and no provision of the Anteon Asset Purchase Agreement shall have been waived, amended, supplemented or otherwise modified in any material respect adverse to the Lenders without the consent of the Administrative Agent.
(f) The Borrower shall have borrowed not more than $170,000,000 aggregate principal amount of Bridge Loans substantially on the terms set forth in the Bridge Loan Term Sheet.
(g) All requisite Governmental Authorities and material third parties shall have approved or consented to the Anteon Asset Purchase and the other transactions contemplated hereby to the extent required and all applicable appeal periods shall have expired, and there shall be no litigation, governmental, administrative or judicial action, actual or known by the Borrower to be threatened, that could reasonably be expected to prevent, materially restrain or impose materially burdensome conditions on the Anteon Asset Purchase or the other transactions contemplated hereby.
(h) The holder of the Seller Subordinated Notes shall have entered into an amendment to the subordination agreement relating thereto to provide, among other things, that the Obligations under and as defined in the Credit Agreement up to an aggregate amount of $465,000,000 (after giving effect to this Assumption Agreement and Amendment) shall constitute “Senior Debt” for all purposes of the Seller Note Securities Purchase Agreement and otherwise in form and substance reasonably satisfactory to the Administrative Agent, certifying as to the solvency of the Borrower and the Subsidiaries on a consolidated basis after giving effect to the Amendment Transactions to occur on the Incremental Term Effective Date.
(i) The reaffirmation attached to this Amendment as Exhibit A has been duly authorized, executed and delivered by a duly authorized officer of each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law.
(j) The Administrative Agent shall have received from the Borrower a completed Perfection Certificate dated as of the Incremental Term Effective Date, together will all attachments contemplated thereby. The Request for Credit Extension under Section 4(a)(i) hereof shall be deemed to be a representation and warranty that the conditions specified in Sections 4(d) and 4(e) hereof have been satisfied on and as of the Incremental Term Effective Date.
Appears in 1 contract
Samples: Incremental Term Loan Assumption Agreement and Amendment No. 3 (Alion Science & Technology Corp)
