Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Effective Date”): (a) The Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, the Administrative Agent and the Incremental Lender. (b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral. (c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act. (d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid. (e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization. (f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date. (g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment. (h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom. (i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date). (j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4.
Appears in 2 contracts
Samples: Incremental Revolving Commitment Agreement (Avis Budget Group, Inc.), Incremental Revolving Commitment Agreement (Avis Budget Group, Inc.)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement, the obligations of each Extending Lender to convert its existing Revolving Credit Commitments into Revolving Credit Commitments (as defined in the Restated Credit Agreement) under the Restated Credit Agreement, the obligations of each New Lender to make available Revolving Credit Commitments (as defined in the Restated Credit Agreement), and the amendment and restatement of the Original Credit Agreement is as the Restated Credit Agreement are subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so are satisfied, the “Incremental Commitment Effective Restatement Date”):
(a) The Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of Holdings, (i) the Borrower, (ii) each other Loan Party, (iii) each Existing Lender, (iv) each New Lender, (v) the Administrative Agent L/C Issuer, (vi) the Swing Line Lender and (vii) the Incremental LenderRequired Secured Parties.
(b) Each Loan Party All of the conditions precedent set forth in Article IV of the Restated Credit Agreement shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateralhave been satisfied or waived.
(c) The Borrower shall have delivered paid all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation amounts due and payable as of the Restatement Date to the Administrative Agent and the Incremental Lender on or prior Collateral Agent pursuant to the Incremental Commitment Effective Loan Documents.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Restated Credit Agreement and the other Loan Documents (as defined in the Restated Credit Agreement) shall be true and correct in all material respects on and as of the Restatement Date as if made on and as of such date except to the extent such representations and warranties expressly refer to an earlier date (in which case such representations and warranties shall have been paidbe true and correct in all material respects as of such earlier date); provided that any representation or warranty that is qualified as to materiality, “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred and be continuing or would result from on the Increased Revolving Commitment requested to be made or from the application of the proceeds therefromRestatement Date.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4.
Appears in 2 contracts
Samples: Third Amendment and Restatement Agreement (Targa Resources Partners LP), Second Amendment and Restatement Agreement (Targa Resources Partners LP)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Effective Date”):
(a) The Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, the Administrative Agent and the Incremental Lender.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it them from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4.
Appears in 2 contracts
Samples: Incremental Revolving Commitment Agreement, Incremental Revolving Commitment Agreement (Avis Budget Group, Inc.)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Tranche B Term Facility Effective Date”):
(a) The Administrative Tranche B Term Facility Closing Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of the Borrower, Holdings, the BorrowerAdministrative Agent, the Administrative Agent Tranche B Term Facility Closing Agent, the Tranche B Facility Arrangers and the Incremental LenderTranche B Term Lenders.
(b) Each Loan Party shall reaffirm have reaffirmed by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I III that the Increased Revolving Commitment Tranche B Term Loans shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender Tranche B Term Lenders at least three days prior to the Incremental Commitment Tranche B Term Facility Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent Agent, the Tranche B Term Facility Closing Agent, the Tranche B Facility Arrangers and the Incremental Lender Tranche B Term Lenders on or prior to the Incremental Commitment Tranche B Term Facility Effective Date shall have been paid.
(e) The Administrative Tranche B Term Facility Closing Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Tranche B Term Facility Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments attachments, including the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Tranche B Term Facility Closing Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Existing Credit Agreement, addressed to the Administrative Agent Agent, Tranche B Term Facility Closing Agent, the Tranche B Facility Arrangers and the Incremental Lender Tranche B Term Lenders as of the Incremental Commitment Tranche B Term Facility Effective Date.
(g) The Administrative Tranche B Term Facility Closing Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it them from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event Tranche B Term Loans. On the Tranche B Term Facility Effective Date, the Tranche B Term Facility Closing Agent shall deliver to the Borrower a certificate in form and substance reasonably satisfactory to the Borrower confirming the satisfaction of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application all of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the foregoing conditions set forth in clauses (ha) and through (ig) above of this Section 44 and that the Tranche B Term Facility Effective Date has occurred.
Appears in 1 contract
Samples: Incremental Tranche B Term Facility Agreement (Avis Budget Group, Inc.)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Facilities Effective Date”):
(a) The Administrative Agent Incremental Facilities Lead Arrangers shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of the Borrower, Holdings, the BorrowerAdministrative Agent, the Administrative Agent Incremental Facilities Arrangers and the Incremental LenderLenders.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I III that the Tranche A Term Loan and the Increased Revolving Commitment Commitments shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender Lenders at least three days prior to the Incremental Commitment Facilities Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent Agent, the Incremental Facilities Arrangers and the Incremental Lender Lenders on or prior to the Incremental Commitment Facilities Effective Date shall have been paid.
(e) The Administrative Agent Incremental Facilities Lead Arrangers shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Facilities Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments attachments, including the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent Incremental Facilities Lead Arrangers shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Existing Credit Agreement, addressed to the Administrative Agent Agent, the Incremental Facilities Arrangers and the Incremental Lender Lenders as of the Incremental Commitment Facilities Effective Date.
(g) The Administrative Agent Incremental Facilities Lead Arrangers shall have received a solvency certificate in form and substance reasonably satisfactory to it them from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Tranche A Term Loan and the Increased Revolving CommitmentCommitments.
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Tranche A Term Loan or the Increased Revolving Commitment Commitments requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Facilities Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent Incremental Lead Arrangers shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 45.
Appears in 1 contract
Samples: Incremental Facilities Agreement (Avis Budget Group, Inc.)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Term Loan Increase Effective Date”):
(a) The Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, the Administrative Agent and the Incremental Lender.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment New Tranche B Term Loan made pursuant to the Term Loan Increase shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender in connection with this Agreement on or prior to the Incremental Commitment Term Loan Increase Effective Date shall have been paid.
(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 each Loan Party, the authorization of this Agreement and the transactions contemplated hereby and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby (including, without limitation, certified resolutions from the board of directors, members or other similar body of each Loan Party authorizing the execution, delivery and performance of this Agreement), all in form and substance reasonably satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received the legal opinion of (i) a certificate of each Loan PartyRopes & Xxxx LLP, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C counsel to the Credit AgreementLoan Parties, with appropriate insertions and attachments and (ii) a good standing certificate for the General Counsel of the Borrower and (iii) each special and local counsel as may be reasonably requested by the Administrative Agent. Each such legal opinion shall cover such customary matters incidental to this Agreement as the Administrative Agent may request and shall be addressed to the Administrative Agent and the Lenders as of the Term Loan Party from its jurisdiction of organizationIncrease Effective Date. It is understood and agreed that the opinions delivered in connection with the second amendment executed on even date herewith shall be sufficient to satisfy the conditions set forth in this clause (e) to the extent such opinions cover the matters set forth in this clause (e).
(f) The Administrative Agent shall have received an executed legal opinion a certificate, dated the Term Loan Increase Effective Date and signed by the president or a vice president of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiariesor a Financial Officer, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Administrative Agent, together with such other evidence reasonably requested by the Lenders, confirming that (i) the Borrower that shall document will be in compliance on a Pro Forma Basis with the solvency Financial Performance Covenant (such covenant to be applied even if no Revolving Loan or Swingline Loan and less than $7.5 million of the Borrower and its Subsidiaries LC Exposure is outstanding) after giving effect to the Increased Revolving Commitment.
transactions contemplated hereby and (hii) No at the time of and immediately after giving effect to this Agreement, no Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.continuing
(ig) Each of the representations and warranties The conditions set forth in Section 4 4.02 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and satisfied as of the Incremental Commitment Term Loan Increase Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date)Date.
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4.
Appears in 1 contract
Samples: Incremental Facility Amendment (Shoreline Real Estate Partnership, LLP)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each amendment of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall the following occur or have been so satisfied, waived in accordance with Section 9.01 of the Existing Credit Agreement (the “Incremental Commitment First Amendment Effective Date”):
(a) The Administrative Agent shall have received a counterpart duly executed counterparts of this Agreement, executed and delivered by a duly authorized officer of Holdings, Agreement from (A) the Borrower, (B) Holdings, (C) Lenders constituting the Required Lenders, (D) the New B Term Loan Lender, and (E) the Administrative Agent and the Incremental LenderAgent.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (i) a certificate of each Loan Party, the Secretary or Assistant Secretary of the Borrower dated the Incremental Commitment First Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of the Borrower as in effect on the First Amendment Effective Date and, if earlier, at all times since 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 comparable governing body) of the Borrower authorizing the execution, delivery and performance of this Agreement and the other documents delivered in connection herewith to which the Borrower is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (c) below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any document delivered in connection herewith on behalf of the Borrower.
(c) The Administrative Agent shall have received certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of the Borrower as in effect on the First Amendment Effective Date, substantially in certified as of a recent date by the form Secretary of Exhibit C State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate of the Borrower as of a recent date, from such Secretary of State (or comparable authority).
(d) The Administrative Agent shall have received a favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Borrower, dated as of the First Amendment Effective Date, addressed to the Administrative Agent, each Loan Party from its jurisdiction of organizationCollateral Agent and each Lender in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower hereby requests such counsel to deliver such opinion.
(e) The representations and warranties made or deemed to be made in this Agreement shall be true and correct in all material respects.
(f) The Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed by an executed legal opinion officer of Xxxxxxxx & Xxxxx LLPthe Borrower, counsel certifying to the matters set forth in clause (e) of this Section 3.
(g) The Borrower shall have paid all fees and other amounts due and payable on or prior to the First Amendment Effective Date pursuant to this Agreement or as separately agreed by the Borrower and its subsidiaries, substantially in any of the form Arrangers or Lenders and all invoiced expenses of Exhibit E to the Credit Agreement, addressed Administrative Agent and the Arrangers relating hereto (including those of counsel to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective DateArrangers).
(gh) The Borrower shall have paid to the Administrative Agent immediately available funds in an aggregate amount equal to the aggregate payments required to be made by the Borrower to the assignors pursuant to Section 2(a)(ii) hereof.
(i) The Administrative Agent shall have received a solvency certificate notice of continuation, substantially in the form attached as Exhibit A to this Agreement, from the Borrower with respect to the Existing B Term Loans. The Administrative Agent shall notify the Borrower, the Existing B Term Loan Lenders and substance reasonably the New B Term Loan Lender of the First Amendment Effective Date, and such notice shall be conclusive and binding absent manifest error. For purposes of determining compliance with the conditions specified above, each Lender party to 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 it from a Responsible Officer of such Persons unless the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate written notice from a Responsible Officer of such Person prior to the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4First Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness of Agreement. The effectiveness of this (a) This Agreement is subject to shall become effective on the satisfaction of each date (the “Restatement Effective Date”) on which all of the following conditions (the date on which such conditions shall precedent have been so satisfied, the “Incremental Commitment Effective Date”):satisfied or waived:
(ai) The the Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of Holdings, each of (A) the Borrower, (B) the Fronting Lenders, (C) X.X. Xxxxxx Europe Limited, as Foreign Currency Agent, (D) each Revolving Lender and (E) each Term Lender;
(ii) the Administrative Agent shall have received an executed Acknowledgement and the Incremental Lender.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially Confirmation, in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.Exhibit B, from an authorized officer of each Loan Party;
(ciii) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and shall have received a certificate, dated the Incremental Lender on or prior to the Incremental Commitment Restatement Effective Date shall have been paid.and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 5.2 of the Restated Credit Agreement; and
(eiv) The the Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C all fees and other amounts due and payable on or prior to the Credit AgreementRestatement Effective Date for which invoices have been presented, with appropriate insertions including all reasonable out-of-pocket expenses (including reasonable fees, charges and attachments disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document and (ii) a good standing certificate consent fee payable for the account of each Loan Party from its jurisdiction of organization.
Lender (fother than a Defaulting Lender) The Administrative Agent shall have received that has returned an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel signature page to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed this Agreement to the Administrative Agent at or prior to 5:00 p.m., New York City time on March 18, 2011 (the “Consent Deadline” and each such Lender, a “Consenting Lender”) equal to 0.05% of the Incremental sum of (x) the aggregate principal amount of Term Loans, if any, held by such Consenting Lender as of the Incremental Commitment Effective Date.
Consent Deadline and (gy) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer the aggregate amount of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event , if any, of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and Consenting Lender as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date)Consent Deadline.
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4.
Appears in 1 contract
Samples: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Effective Date”):
(a) The Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, Holdings, the Administrative Agent and the Incremental Lender.
(b) Each Loan Party shall reaffirm by executing the Guarantee Acknowledgment and Collateral Acknowledgement Confirmation substantially in the form attached hereto as Annex I that the Increased Revolving Commitment Specified Incremental Tranche B-1 Term Loan made pursuant to the Incremental Term Loan shall be secured equally and ratably with the existing Loans by the Collateral. It is understood and agreed that the Acknowledgment and Confirmation delivered in connection with the First Amendment executed on even date herewith shall be sufficient to satisfy the conditions set forth in this clause (b) to the extent such opinions cover the matters set forth in this clause (b).
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender in connection with this Agreement on or prior to the Incremental Commitment Effective Date shall have been paid.
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 each Loan Party, the authorization of this Agreement and the transactions contemplated hereby and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby (including, without limitation, certified resolutions from the board of directors, members or other similar body of each Loan Party authorizing the execution, delivery and performance of this Agreement), all in form and substance reasonably satisfactory to the Administrative Agent.
e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP, counsel to the Borrower Loan Parties. Each such legal opinion shall cover such customary matters incidental to this Agreement as the Administrative Agent may request and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, shall be addressed to the Administrative Agent and the Incremental Lender Lenders as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate . It is understood and agreed that the opinions delivered in form and substance reasonably satisfactory to it from a Responsible Officer of connection with the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) First Amendment executed on even date therewith shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except sufficient to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with satisfy the conditions set forth in clauses this clause (he) and to the extent such opinions cover the matters set forth in this clause (ie).
f) above The conditions set forth in Section 4.02 of this Section 4the Credit Agreement shall be satisfied as of the Incremental Effective Date.
Appears in 1 contract
Samples: Incremental Facility Amendment (SWIFT TRANSPORTATION Co)
Conditions to Effectiveness of Agreement. The effectiveness obligation of this Agreement is the Lender to make the initial Revolving Credit Loan hereunder shall be subject to the fulfillment (to the satisfaction of each the Lender) of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Effective Date”):precedent:
(a) The Administrative Agent Borrower shall have received a counterpart of executed and delivered to the Lender, this Agreement, executed and delivered by a duly authorized officer of Holdingsthe Revolving Credit Note, the Borrower, the Administrative Agent Security Agreement and the Incremental LenderAssignment of Leases.
(b) Each Loan Party Prior to or contemporaneously with the funding of the initial Loan, all existing Indebtedness of the Borrower for borrowed money shall reaffirm by executing have been paid in full and evidence thereof, in form and substance satisfactory to the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment Lender, shall be secured equally and ratably with delivered to the existing Loans by the CollateralLender.
(c) The Borrower shall have filed or executed and delivered to the Lender for filing all documentation such UCC-1 financing statements, in form and information substance satisfactory to the Lender, as is reasonably requested the Lender shall require to perfect and preserve its security interest created under the Security Documents (and the Borrower shall also execute and deliver to the Lender such additional UCC-1 financing statements for such additional locations as the Lender may from time to time request);
(d) The Lender shall have received copies of the following, each of which shall be satisfactory to the Lender:
(a) The Financial Statements and (b) an initial Borrowing Base Report dated as of the date of the making of such Loan, certified to be true and correct and as having been prepared in writing accordance with GAAP by the Incremental Lender at least three President or the Chief Financial Officer of the Borrower;
(ii) A Certificate of the Secretary or Assistant Secretary of the Borrower certifying to the Articles of Incorporation of the Borrower (certified by the Secretary of State of Massachusetts), the by-laws of the Borrower; the taking of all corporate action by the Borrower necessary to authorize the execution, delivery and performance of each of the Loan Documents and that such action has not been rescinded, limited or modified;
(iii) Good standing certificates as of dates not more than twenty (20) days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation date of the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, closing with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel respect to the Borrower from the State of Massachusetts, from each other significant state where the Borrower is authorized to transact business which is listed on Schedule 3.1(b) and its subsidiaries, from each other jurisdiction specified by the Lender;
(iv) An incumbency certificate (with specimen signatures) with respect to the officers of the Borrower;
(v) An opinion of counsel of the Borrower addressed to the Lender substantially in the form of Exhibit E annexed hereto.
(e) All original executed copies of Leases shall be in the possession of the Borrower; provided, that, the file containing such Leases shall be stamped with the legend set forth in Section 6.8;
(f) The Lender or an independent auditor acceptable to the Credit AgreementLender shall have completed its independent audit of the books, addressed records, properties and assets of the Borrower and the results thereof shall have been satisfactory to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Datein its sole discretion.
(g) The Administrative Agent Lender shall have received a solvency certificate in form all fees, costs and substance reasonably satisfactory to it from a Responsible Officer expenses payable by the Borrower, including, without limitation, the reasonable fees and expenses of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect counsel to the Increased Revolving CommitmentLender (not to exceed $15,000), to the extent payable on or prior to the date hereof.
(h) No Default or Event of Default shall have occurred has occurred, each representation and be continuing or would result from warranty contained in the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) Loan Documents shall be true and correct in all material respects (and respects, the Borrower shall be in compliance with all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made covenants to be complied with by the Borrower and the Lender shall have received a certificate hereto dated the date hereof certifying to such effect and, inter ----- alia, that the conditions set forth in Sections 4.1(e) and (i) are satisfied on ---- such date.
(i) All consents, except approvals and authorizations required in connection with the execution, delivery and performance of this Agreement shall have been delivered to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date)Lender.
(j) The Administrative Agent Lender shall have received a certificate from a Responsible Officer an "omnibus" assignment, in the form of Exhibit H hereto, of all Uniform Commercial Code financing statements filed by the Borrower documenting with respect to Equipment and Leases included in the Borrowing Base.
(k) The Lender shall have been made a party to the Borrower’s compliance with 's existing lock box arrangement in a manner satisfactory to the conditions set forth in clauses Lender.
(hl) and (i) above All legal matters incident to the effectiveness of this Section 4Agreement shall be satisfactory to counsel to the Lender.
Appears in 1 contract
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Effective Date”):
(a) The Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, the Administrative Agent and the Incremental Lender.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment Additional Tranche A Term Loan shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving CommitmentAdditional Tranche A Term Loan.
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment Additional Tranche A Term Loan requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4.
Appears in 1 contract
Samples: Incremental Commitment Agreement (Avis Budget Group, Inc.)
Conditions to Effectiveness of Agreement. The effectiveness of This Agreement (other than Section 2 hereof, which shall become effective in accordance with Section 9 hereof) shall be effective on the date on which the Administrative Agent shall have signed this Agreement is subject to and all of the satisfaction following conditions precedent set forth below have been satisfied (the "Effective Date"): Standstill Agreement and Fifth Amendment
(a) the Administrative Agent shall have received each of the Standstill Documents, executed and delivered by an authorized officer of each of the following conditions Standstill Parties;
(b) the date on which such conditions Administrative Agent shall have received each of the Standstill Documents, executed and delivered by an authorized officer of each Lender directly affected hereby;
(c) the Post-Petition Credit Agreement shall have been so satisfiedduly executed and delivered by the Company and each of the DIP Lenders;
(d) entry of an interim order issued by the Bankruptcy Court in substantially the form of Exhibit A and otherwise in form and substance satisfactory to the Administrative Agent, in consultation with the Steering Committee;
(e) delivery to the Administrative Agent of the security agreements that are required to be delivered on the Effective Date pursuant to Section 11 of this Agreement;
(f) delivery to the Administrative Agent of a complete list of Liens on the Property or assets of each Foreign Subsidiary, known to a Responsible Officer of the Company, existing on the date of the Standstill Agreement;
(g) satisfactory legal opinions with respect to the Standstill Agreement and any other documents executed in connection therewith including legal opinions that the additional security agreements do not conflict with the DM Notes;
(h) payment of the Standstill Fee and all accrued fees and expenses of the Administrative Agent in connection with all matters relating to this Agreement and the Loan Documents, including, without limitation, the “Incremental Commitment Effective Date”):fees and expenses of counsel (including local counsel in foreign jurisdictions) and financial advisor to the Administrative Agent and the Steering Committee;
(ai) The Administrative Agent shall have received a counterpart certified copies of (i) the resolutions of the Board of Directors of (A) each of the Standstill Parties approving this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, the Administrative Agent Agreement and the Incremental Lender.matters contemplated hereby and thereby and (B) the Company and each of the Domestic Subsidiary Guarantors evidencing approval of the Consent and this Agreement and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the matters contemplated hereby and thereby; and
(bj) Each Loan Party shall reaffirm by executing The items set forth on Schedule B hereto relating to the Guarantee and Collateral Acknowledgement substantially in reorganization of the form attached hereto as Annex I Foreign Subsidiaries that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is Foreign Subsidiaries are reasonably requested in writing by the Incremental Lender at least three days capable of completing prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C completed to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction satisfaction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent Agent. Standstill Agreement and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) and (i) above of this Section 4.Fifth Amendment
Appears in 1 contract
Samples: Standstill Agreement and Fifth Amendment to the Credit Agreement (Exide Corp)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each amendment of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall the following occur or have been so satisfied, waived in accordance with Section 9.02 of the Existing Credit Agreement (the “Incremental Commitment First Amendment Effective Date”):
(a) The Administrative Agent shall have received a counterpart duly executed counterparts of (i) this Agreement, executed and delivered by a duly authorized officer of Holdings, Amendment Agreement from (A) the Borrower, (B) the Lenders, (C) the Issuing Bank and (D) the Administrative Agent and (ii) the Incremental LenderReaffirmation Agreement attached hereto from each Loan Party.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered to the Administrative Agent a written notice of prepayment with respect to the First Amendment Prepayment as required by Section 2.10(f) of the Existing Credit Agreement. The Borrower shall have paid to the Administrative Agent, for the account of the applicable payees, all documentation fees, principal, accrued interest and information as is reasonably requested other amounts, in writing by the Incremental Lender at least three days each case, due and payable on or prior to the Incremental Commitment First Amendment Effective Date required pursuant to this Amendment Agreement or as separately agreed by U.S. regulatory authorities under applicable “know your customer” the Borrower and anti-money laundering rules the Arranger, and regulations, including without limitation the PATRIOT Act.
(d) All accrued Borrower shall also have reimbursed all reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm the Administrative Agent and the Arranger relating hereto (including those of counsel) and other compensation due and payable counsel to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paidArranger).
(ec) The Administrative Agent shall have received (i) a certificate At the time of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries immediately after giving effect to the Increased Revolving Commitment.
(h) No this Amendment Agreement, no Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(id) Each of the The representations and warranties set forth made or deemed to be made in Section 4 of the Credit this Amendment Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if respects, except for any such representation and or warranty that is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such datemateriality or by reference to Material Adverse Effect, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are shall be true and correct in all material respects as of such earlier date)respects.
(je) The Administrative Agent shall have received a certificate from certificate, dated the First Amendment Effective Date and signed by a Responsible Financial Officer of the Borrower documenting Borrower, certifying to the Borrower’s compliance with the conditions matters set forth in clauses (hc) and (id) above of this Section 43. The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment Agreement shall not become effective if each of the conditions set forth or referred to in this Section 3 has not been satisfied at or prior to 11:59 p.m., New York City time, on June 6, 2017 (it being understood that any such failure of this Amendment Agreement to become effective will not affect any rights or obligations of any Person under the Existing Credit Agreement).
Appears in 1 contract
Samples: Credit Agreement (Comtech Telecommunications Corp /De/)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each amendment of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall the following occur or have been so satisfied, waived in accordance with Section 9.01 of the Existing Credit Agreement (the “Incremental Commitment Fifth Amendment Effective Date”):
(a) The Administrative Agent shall have received a counterpart duly executed counterparts of this AgreementAgreement from (A) the Initial Borrower, executed and delivered by a duly authorized officer of (B) the Successor Borrower, (C) Holdings, (D) Lenders constituting the BorrowerRequired Lenders, the Administrative Agent (E) each Continuing A5 Term Loan Lender and each New A5 Term Loan Lender, (F) each Continuing B Term Loan Lender and the Incremental LenderNew B Term Loan Lender and (G) the Agent.
(b) Each Loan Party The Administrative Agent shall reaffirm by executing have received a certificate of the Guarantee Secretary or Assistant Secretary of each of the Initial Borrower, the Successor Borrower and Collateral Acknowledgement substantially Holdings, in each case, dated the Fifth Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Person as in effect on the Fifth Amendment Effective Date and, if earlier, at all times since the date of the resolutions described in clause (B) below (or, where applicable, a certificate of the Secretary or Assistant Secretary of such Person certifying (1) in the form attached hereto as Annex I case of the Initial Borrower or Holdings, that the Increased Revolving Commitment shall be secured equally applicable by-laws or comparable organizational document delivered on the Closing Date, First Amendment Effective Date, the Second Amendment Restatement Date, Third Amendment Effective Date or the Fourth Amendment Effective Date, as applicable, or, in the case of the Successor Borrower, on the Closing Date (as defined in the Leidos Credit Agreement), the First Restatement Effective Date (as defined in the Leidos Credit Agreement) or the Second Amendment Effective Date (as defined in the Leidos Credit Agreement), as applicable (such date, the “Reference Date”), were true and ratably with correct as of the existing Loans Reference Date and (2) as of the Fifth Amendment Effective Date, there have been no amendments or modifications to such documents since the Reference Date and that such documents remain in full force and effect), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the CollateralBoard of Directors (or comparable governing body) of such Person authorizing the execution, delivery and performance of this Agreement and the other documents delivered in connection herewith 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) that the certificate or articles of incorporation (or comparable organizational document) of such Person have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (c) below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any document delivered in connection herewith on behalf of such Person.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (ix) certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each of the Initial Borrower, the Successor Borrower and Holdings, in each case, as in effect on the Fifth Amendment Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and (y) a certificate as to the good standing of each Loan Partyof the Initial Borrower, the Successor Borrower and Holdings, in each case, as of a recent date, from the Secretary of State (or comparable entity) of the jurisdiction of its organization.
(d) The Administrative Agent shall have received a favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial Borrower, the Successor Borrower and Holdings, dated as of the Incremental Commitment Fifth Amendment Effective Date, substantially in the form of Exhibit C addressed to the Credit AgreementAdministrative Agent, with appropriate insertions each Collateral Agent and attachments each Lender in form and substance reasonably satisfactory to the Administrative Agent and covering the Initial Borrower, the Successor Borrower and Holdings, and each of the Initial Borrower, the Successor Borrower and Holdings hereby requests such counsel to deliver such opinions.
(iie) a good standing certificate for each Loan Party from its jurisdiction of organizationThe representations and warranties made or deemed to be made in this Agreement shall be true and correct in all material respects.
(f) The Administrative Agent shall have received an executed legal opinion a certificate from each of Xxxxxxxx & Xxxxx LLPthe Initial Borrower, counsel the Successor Borrower and Holdings, in each case, dated the Fifth Amendment Effective Date and signed by a Responsible Officer of the Initial Borrower, the Successor Borrower or Holdings, as applicable, certifying to the matters set forth in clause (e) of this Section 4.
(g) The Initial Borrower shall have paid all fees and other amounts due and payable on or prior to the Fifth Amendment Effective Date pursuant to this Agreement or as separately agreed by the Initial Borrower and its subsidiaries, substantially in the form Arranger and/or any of Exhibit E to the Credit Agreement, addressed Lenders and all invoiced expenses of the Administrative Agent and the Arranger relating hereto (including those of counsel to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective DateArranger).
(gh) The Initial Borrower shall have paid to the Administrative Agent in immediately available funds an aggregate amount equal to the aggregate payments required to be made by the Initial Borrower to the assignors pursuant to Section 3(a)(ii) and Section 3(b)(ii) hereof. The New A5 Term Loan Lenders shall have paid to the Administrative Agent in immediately available funds an aggregate amount equal to the aggregate payments required to be made by such parties to the Departing A5 Term Loan Lenders and Decreasing A5 Term Loan Lenders, as applicable, pursuant to Section 3(a)(ii) hereof.
(i) The Administrative Agent shall have received a solvency certificate notice of continuation, substantially in the form and substance reasonably satisfactory attached as Exhibit A to it this Agreement, from a Responsible Officer of the Successor Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect with respect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred Existing A5 Term Loans and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date)Existing B Term Loans.
(j) The Administrative Agent shall have received the Reaffirmation Agreement attached as Exhibit B to this Agreement, executed by each Loan Party.
(k) The Administrative Agent shall have received a certificate from a Responsible Officer certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230 (the “Beneficial Ownership Certification”) in relation to the Successor Borrower. The Administrative Agent shall notify the Initial Borrower, the Successor Borrower, each Existing A5 Term Loan Lender, each New A5 Term Loan Lender, each Existing B Term Loan Lender and the New B Term Loan Lender of the Borrower documenting the Borrower’s Fifth Amendment Effective Date, and such notice shall be conclusive and binding absent manifest error. For purposes of determining compliance with the conditions set forth in clauses (h) and (i) above of specified above, each Lender party to this Section 4Agreement 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 such Person unless the Administrative Agent shall have received written notice from such Person prior to the Fifth Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction obligations of each Term 2 Lender to make the Term 2 Advance and the amendment of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall have been so satisfied, the following occur (the “Incremental Commitment Fourth Amendment Effective Date”):
(a) The Administrative Agent shall have received a counterpart duly executed counterparts of this AgreementAgreement from (A) the Loan Parties, executed (B) the Term 2 Lenders and delivered by a duly authorized officer of Holdings, the Borrower, (C) the Administrative Agent and the Incremental LenderAgent.
(b) Each Loan Party The Sequoia Acquisition shall reaffirm by executing be consummated substantially contemporaneously with the Guarantee and Collateral Acknowledgement substantially initial funding under the Term 2 Facility in accordance with the terms described in the form attached hereto Equity Purchase Agreement, dated as Annex I of June 3, 2021 (the “Acquisition Agreement”), by and between Xxxx Xxxxxxxx (the “Seller”), Xxxxxxxx and Associates, LLC, and the Borrower. The (i) representations and warranties made by or on behalf of the Seller in the Acquisition Agreement as are material to the interests of the Term 2 Lenders or the Arranger (in their capacities as such), but only to the extent that the Increased Revolving Commitment Borrower (or any of its affiliates) has the right to terminate its obligations (or to refuse to consummate the Sequoia Acquisition) under the Acquisition Agreement as a result of a breach of any of such representations and warranties, shall be secured equally true and ratably correct and (ii) Specified Representations shall be true and correct in all material respects (or in all respects, if qualified by materiality). The Administrative Agent shall have received a certificate, dated the Fourth Amendment Effective Date from a Financial Officer of the Borrower certifying compliance with the existing Loans by the Collateralthis Section 3(b).
(c) The Borrower Administrative Agent shall have delivered received on or before the Fourth Amendment Effective Date the following, in form and substance satisfactory to the Administrative Agent and (except for any Term 2 Notes) in sufficient copies for each Term 2 Lender:
(i) A certificate of the Secretary or Assistant Secretary of each Loan Party dated the Fourth Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Fourth Amendment Effective Date and at all documentation times since the date of the resolutions described in the immediately following clause (B), (B) that attached thereto is a true and information as is reasonably requested in writing complete copy of resolutions duly adopted by the Incremental Lender Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents delivered on or about the Fourth Amendment Effective Date to which such Loan Party is a party and, in the case of the Borrower, the Borrowing under the Term 2 Facility, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) 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 (iii) immediately below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ii) A certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(iii) Certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Fourth Amendment Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity).
(iv) A favorable opinion of Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, counsel for the Borrower and the other Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent and the Term 2 Lenders in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion.
(v) Any Term 2 Notes, to the extent requested at least three days Business Days prior to the Incremental Commitment Fourth Amendment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actrespective Term 2 Lender pursuant to Section 2.16 of the Amended Credit Agreement.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior shall have received a Notice of Borrowing with respect to the Incremental Commitment Term 2 Advance to be made on the Fourth Amendment Effective Date shall have been paidsetting forth the information specified in Section 2.02(a) of the Amended Credit Agreement.
(e) The Administrative Agent shall have received (i) a solvency certificate from a Financial Officer of each Loan Party, dated the Incremental Commitment Effective Date, substantially Borrower in the form of Exhibit C H to the Amended Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel All fees required to be paid by the Borrower hereunder or as separately agreed by the Borrower and its subsidiaries, substantially in the form Arranger or the Term 2 Lenders and all invoiced expenses of Exhibit E to the Credit Agreement, addressed Administrative Agent and the Arranger relating hereto (including those of counsel to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective DateArranger), shall have in each case been paid.
(g) The Administrative Agent Arranger shall have received received, at least three Business Days prior to the Fourth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer”, anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, and the Borrower shall deliver a solvency certificate certification substantially similar in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitmentform of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association, that such Arranger has requested at least ten Business Days prior to the Fourth Amendment Effective Date.
(h) No Default or Event The Security and Guarantee Documents shall be in full force and effect on the Fourth Amendment Effective Date. The Collateral Agent, on behalf of Default the Secured Parties, shall have occurred and be continuing or would result from a security interest in the Increased Revolving Commitment requested to be made or from the application Collateral of the proceeds therefrom.
(i) Each type and priority described in each Security and Guarantee Document. Notwithstanding the foregoing, if, after the use by the Loan Parties of commercially reasonable efforts to cause the representations conditions relating to the collateral and warranties guarantee matters set forth in Section 4 of the Credit Agreement (as amended by this Agreement3(h) shall above to be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and satisfied as of the Incremental Commitment Fourth Amendment Effective Date as if made on (other than Collateral in which a security interest therein may be perfected by (A) the filing of a Uniform Commercial Code financing statement, (B) taking delivery and possession of stock (or other equity interest) certificates and related stock powers executed in blank (other than in respect of any Excluded Subsidiary) of the Loan Parties or any subsidiary of the Loan Parties organized outside of the United States) or (C) the filing of a short form security agreement with the United States Patent and Trademark Office or the United States Copyright Office), such date, except conditions shall not be a condition precedent to the extent that funding of the Term 2 Advance on the Fourth Amendment Effective Date, but shall be accomplished as promptly as practicable after the Fourth Amendment Effective Date and in any event within 30 days or such representations and warranties expressly relate solely later date as the Administrative Agent may agree to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) its sole discretion. The Administrative Agent shall have received a certificate from a Responsible Officer notify the Borrower, the Revolving Credit Lenders, the Term Advance Lenders, the Tranche B Lenders, Tranche B2 Lenders and the Term 2 Lenders of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) Fourth Amendment Effective Date, and (i) above of this Section 4such notice shall be conclusive and binding absent manifest error.
Appears in 1 contract
Samples: Fourth Amendment (Science Applications International Corp)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each amendment of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall the following occur or have been so satisfied, waived in accordance with Section 9.01 of the Existing Credit Agreement (the “Incremental Commitment Fourth Amendment Effective Date”):
(a) The Administrative Agent shall have received a counterpart duly executed counterparts of this Agreement, executed and delivered by a duly authorized officer of Holdings, Agreement from (A) the Borrower, (B) Holdings, (C) Lenders constituting the Administrative Agent Required Lenders, (D) each Continuing A5 Term Lender and each New A5 Term Loan Lender, (E) each Continuing B Term Lender and the Incremental LenderNew B Term Loan Lender and (F) the Agent.
(b) Each Loan Party The Administrative Agent shall reaffirm by executing have received a certificate of the Guarantee Secretary or Assistant Secretary of each of the Borrower and Collateral Acknowledgement substantially Holdings, in each case, dated the form Fourth Amendment Effective Date and certifying (A) that attached hereto thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Person as Annex I in effect on the Fourth Amendment Effective Date and, if earlier, at all times since the date of the resolutions described in clause (B) below (or, where applicable, a certificate of the Secretary or Assistant Secretary of such Person certifying (1) that the Increased Revolving Commitment shall be secured equally applicable by-laws or comparable organizational document delivered on the Closing Date, First Amendment Effective Date, the Second Amendment Restatement Date or the Third Amendment Effective Date, as applicable, were true and ratably with correct as of the existing Loans Closing Date, First Amendment Effective Date, the Second Amendment Restatement Date or the Third Amendment Effective Date, as applicable, and (2) as of the Fourth Amendment Effective Date, there have been no amendments or modifications to such documents since the Closing Date, First Amendment Effective Date, the Second Amendment Restatement Date or the Third Amendment Effective Date, as applicable, and that such documents remain in full force and effect), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the CollateralBoard of Directors (or comparable governing body) of such Person authorizing the execution, delivery and performance of this Agreement and the other documents delivered in connection herewith 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) that the certificate or articles of incorporation (or comparable organizational document) of such Person have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (c) below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any document delivered in connection herewith on behalf of such Person.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (ix) certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each of the Borrower and Holdings, in each case, as in effect on the Fourth Amendment Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and (y) a certificate as to the good standing of each Loan Partyof the Borrower and Holdings, in each case, as of a recent date, from the Secretary of State (or comparable entity) of the jurisdiction of its organization.
(d) The Administrative Agent shall have received a favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Borrower and Holdings, dated as of the Incremental Commitment Fourth Amendment Effective Date, substantially in the form of Exhibit C addressed to the Credit AgreementAdministrative Agent, with appropriate insertions each Collateral Agent and attachments each Lender in form and substance reasonably satisfactory to the Administrative Agent and covering the Borrower and Holdings, and each of the Borrower and Holdings hereby requests such counsel to deliver such opinions.
(iie) a good standing certificate for each Loan Party from its jurisdiction of organizationThe representations and warranties made or deemed to be made in this Agreement shall be true and correct in all material respects.
(f) The Administrative Agent shall have received an executed legal opinion a certificate from each of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiariesHoldings, substantially in each case, dated the form Fourth Amendment Effective Date and signed by a Responsible Officer of Exhibit E the Borrower or Holdings, as applicable, certifying to the Credit Agreement, addressed matters set forth in clause (e) of this Section 3.
(g) The Borrower shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date pursuant to this Agreement or as separately agreed by the Borrower and any of the Arrangers or Lenders and all invoiced expenses of the Administrative Agent and the Arrangers relating hereto (including those of counsel to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective DateArrangers).
(gh) The Borrower shall have paid to the Administrative Agent in immediately available funds an aggregate amount equal to the aggregate payments required to be made by the Borrower to the assignors pursuant to Section 2(a)(ii) and Section 2(b)(ii) hereof. The New A5 Term Loan Lenders shall have paid to the Administrative Agent in immediately available funds an aggregate amount equal to the aggregate payments required to be made by such parties to the Departing A5 Term Loan Lenders and Decreasing A5 Term Loan Lenders, as applicable, pursuant to Section 2(a)(ii) hereof.
(i) The Administrative Agent shall have received a solvency certificate notice of continuation, substantially in the form and substance reasonably satisfactory attached as Exhibit A to it this Agreement, from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect with respect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred Existing A5 Term Loans and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date)Existing B Term Loans.
(j) The Administrative Agent shall have received evidence that the Concurrent Leidos Amendment has become effective or will become effective substantially simultaneously with the effectiveness of this Agreement, on terms reasonably satisfactory to the Administrative Agent.
(k) The Administrative Agent shall have received the Reaffirmation Agreement attached as Exhibit B to this Agreement, executed by each Loan Party other than Holdings and the Borrower.
(l) The Administrative Agent shall have received a certificate from a Responsible Officer certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230 (the “Beneficial Ownership Certification”) in relation to the Borrower. The Administrative Agent shall notify the Borrower, each Existing A5 Term Loan Lender, each New A5 Term Loan Lender, each Existing B Term Loan Lender and the New B Term Loan Lender of the Borrower documenting the Borrower’s Fourth Amendment Effective Date, and such notice shall be conclusive and binding absent manifest error. For purposes of determining compliance with the conditions set forth in clauses (h) and (i) above of specified above, each Lender party to this Section 4Agreement 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 such Person unless the Administrative Agent shall have received written notice from such Person prior to the Fourth Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each amendment and restatement of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall the following occur or have been so satisfied, waived in accordance with Section 9.5 of the Existing Credit Agreement (the “Incremental Commitment Amendment and Restatement Effective Date”):
(a) The Administrative Agent shall have received a counterpart of (i) this Agreement, executed and delivered by a duly authorized officer of HoldingsParent, the Borrower, the Additional Lenders, Continuing Lenders constituting the Requisite Lenders (as defined in the Existing Credit Agreement), each New Lender and the Administrative Agent and (ii) the Incremental LenderReaffirmation Agreement attached to this Agreement, executed and delivered by a duly authorized officer of each Credit Party.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered all documentation and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.
(e) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate favorable written opinion (addressed to the Administrative Agent, the Collateral Agent, the Arrangers and the Lenders and dated the Amendment and Restatement Effective Date) of each of (A) Xxxxxxxx & Xxxxx, LLP, counsel for the Credit Parties and (B) Xxxxxx Xxxxx, General Counsel of Parent, in each case in form and substance reasonably satisfactory to it from the Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent).
(c) The Administrative Agent shall have received, in respect of each of Parent and the Borrower, (i) a Responsible Officer certificate of such Credit Party executed by the secretary or assistant secretary of such Credit Party attaching (A) a copy of each Organizational Document of such Credit Party, which shall, to the extent applicable, be certified as of the Borrower that shall document Amendment and Restatement Effective Date or a recent date prior thereto by the solvency appropriate Governmental Authority, (B) signature and incumbency certificates of the officers of such Credit Party, (C) resolutions of the board of directors or similar governing body of such Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the Reaffirmation Agreement to which it is a party, certified as of the Amendment and Restatement Effective Date by such secretary or assistant secretary as being in full force and effect without modification or amendment, and (D) a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of organization, dated the Amendment and Restatement Effective Date or a recent date prior thereto, and (ii) such other documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each of Parent and the Borrower and its Subsidiaries the authorization of the transactions contemplated hereby and the Reaffirmation Agreement, all in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Borrower shall have paid to the Administrative Agent and the Arrangers all fees, expenses (including legal expenses) and other amounts due and payable on or prior to the Amendment and Restatement Effective Date pursuant to this Agreement, the Arrangement Letter, and the Credit Documents.
(e) At the time of and immediately after giving effect to the Increased Revolving Commitment.
(h) No this Agreement, no Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(f) The representations and warranties made or deemed to be made in this Agreement shall be true and correct (i) Each in the case of the representations and warranties set forth qualified or modified as to materiality in Section 4 the text thereof, in all respects and (ii) otherwise, in all material respects, in each case on and as of the Credit Agreement (as amended by this Agreement) Amendment and Restatement Effective Date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct, or true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) respects, as applicable, on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(jg) At least five days prior to the Amendment and Restatement Effective Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(h) The Administrative Agent shall have received evidence that the insurance required by Section 5.8 of the Amended and Restated Credit Agreement is in effect.
(i) The Administrative Agent shall have received a certificate from Solvency Certificate, dated the Amendment and Restatement Effective Date and signed by the chief financial officer of Parent.
(j) The Borrower shall have delivered to the Administrative Agent the Funding Notice required by Section 2.1 of the Amended and Restated Credit Agreement.
(k) The Collateral and Guarantee Requirement shall have been satisfied to the extent applicable (and shall continue to be satisfied after giving effect to this Agreement) and the Collateral Agent, on behalf of the Secured Parties, shall have a Responsible security interest in the Collateral of the type and priority described in each Collateral Document, except as otherwise set forth in Section 5 of this Agreement. The Collateral Agent shall have received a completed Supplemental Collateral Questionnaire dated the Amendment and Restatement Effective Date and executed by an Authorized Officer of the Borrower documenting each of Parent and the Borrower’s compliance , together with all attachments contemplated thereby, including the results of a search of the UCC (or equivalent) filings made with respect to the Credit Parties in the jurisdictions contemplated by the Supplemental Collateral Questionnaire and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.1 of the Amended and Restated Credit Agreement or have been, or substantially contemporaneously with the conditions funding of Loans on the Amendment and Restatement Effective Date will be, released or terminated.
(l) The Borrower shall have prepaid all accrued and unpaid interest and fees in respect of the Existing Term Loans to but excluding the Amendment and Restatement Effective Date.
(m) The Administrative Agent shall have received a certificate, dated the Amendment and Restatement Effective Date and signed by a Financial Officer of Parent, certifying to the matters set forth in clauses (he) and (if) above and the first sentence of clause (k) of this Section 43.
(n) The Obligations Guarantee of Parent shall constitute “Senior Indebtedness” and shall have been designated as “Designated Senior Indebtedness” under and as defined in the Convertible Subordinated Notes Indentures and the Administrative Agent shall have received evidence reasonably satisfactory to it of the foregoing. The Administrative Agent shall notify Parent, the Borrower, the Additional Lenders, the Existing Lenders and the New Lenders of the Amendment and Restatement Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Agreement shall not become effective, and the obligations of the applicable Continuing Lenders and the New Lenders to assume Tranche B Term Loans as provided for herein will automatically terminate, if each of the conditions set forth or referred to in this Section 3 has not been satisfied at or prior to 5:00 p.m., New York City time, on August 7, 2015 (it being understood that any such failure of this Agreement to become effective will not affect any rights or obligations of any Person under the Existing Credit Agreement). For purposes of determining compliance with the conditions specified above, each Lender party to 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 such Persons unless an officer of the Administrative Agent responsible for the transactions contemplated by the Credit Documents shall have received notice from such Person prior to the Amendment and Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness of Agreement. The effectiveness of this This Agreement is subject to shall become effective on the satisfaction of each of date (the “Amendment Effective Date”) on which the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Effective Date”):are satisfied or waived:
(a) The Administrative Agent (or its counsel) shall have received a counterpart of this Agreement, executed and delivered by a duly authorized officer of from Holdings, the Borrower, the Subsidiary Loan Parties, the Revolving Facility Lenders, the Issuing Banks and the Swingline Lender either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent and the Incremental Lender(which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower Administrative Agent shall have delivered received all documentation and information as is reasonably requested in writing by fees payable thereto on or prior to the Incremental Lender Amendment Effective Date and, to the extent invoiced at least three days Business Days prior to the Incremental Commitment Amendment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsDate, including without limitation the PATRIOT Act.
(d) All accrued reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses (includingincluding reasonable and documented fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the extent invoiced Loan Parties in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender connection with this Agreement on or prior to the Incremental Commitment Amendment Effective Date shall have been paidDate.
(ec) The Administrative Agent shall have received, on behalf of itself and the Lenders, a written opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP (A) dated the Amendment Effective Date, (B) addressed to the Administrative Agent, the Issuing Banks, the Swingline Lender and the Revolving Facility Lenders on the Amendment Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C on or prior to three Business Days prior to the Amendment Effective Date all documentation and other information of the type set forth in Section 3.25(a) of the Existing Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E extent such information has been requested not less than 5 Business Days prior to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Amendment Effective Date.
(ge) The Borrower shall have delivered to the Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment.
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(i) Each of the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower documenting dated as of the Borrower’s compliance with Amendment Effective Date, to the conditions effect set forth in clauses (hSection 4(b) and (i4(d) above of this Section 4hereof.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions (the date on which such conditions shall have been so satisfied, the “Incremental Commitment Effective Date”):conditions:
(a) The Administrative Agent shall have received Debtor having delivered to Lenders a counterpart duly executed copy of this Agreement, executed and delivered by a duly authorized officer of Holdings, the Borrower, the Administrative Agent and the Incremental Lender.;
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially Debtor having paid all attorneys' fees of Quarles & Brady LLC as counsel to GE Capital in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably connection with the existing Loans by xxxxxxxtiox xxx negotiation of the Collateral.Forbearance and this Agreement;
(c) The Borrower no Event of Default (other than the Existing Defaults) shall have delivered all documentation occurred and information as is reasonably requested in writing by the Incremental Lender at least three days prior to the Incremental Commitment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.be continuing;
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, Debtor having delivered to Lenders duly executed copies of each of the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paid.Collateral Assignments;
(e) The Administrative Agent shall have received Debtor having provided Lenders with: (i) a certificate fully executed copies of each Loan Party, dated all documentation that evidences Debtor's and/or any of their affiliates' loan and guaranty obligations to Guaranty under the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Guaranty Credit Agreement, with appropriate insertions and attachments Facility; and (ii) a good standing certificate for each Loan Party from its jurisdiction written evidence of organization.Guaranty's agreement to provide Lenders with notice of Debtor's default under the Guaranty Credit Facility;
(f) The Administrative Agent shall have received an B of A having released and terminated its lien and security interest in the Purchase Options and the Collateral;
(g) Debtor having delivered to Lenders a duly executed legal opinion copy of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially acknowledgment of Guaranty in the form of Exhibit E to hereto (the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries after giving effect to the Increased Revolving Commitment."Guaranty Acknowledgment");
(h) No Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested Debtor having delivered to be made or from the application Lenders a duly executed copy of the proceeds therefrom.acknowledgment of Halifax in the form of Exhibit F hereto (the "Halifax Acknowledgment");
(i) Each of Debtor having delivered to Lenders complete and accurate legal descriptions for the representations and warranties set forth in Section 4 of the Credit Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such date, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).Chicago Property;
(j) The Administrative Agent shall have received a certificate from a Responsible Officer Guaranty having delivered to Lenders the Subordination Agreement in the form of Exhibit G hereto (the "Guaranty Subordination") duly executed by Guaranty, Debtor and Guarantor;
(k) Debtor having paid to Lenders the first $225,000 installment payment of the Borrower documenting Waiver and Amendment Fee in cash or other immediately available funds; and
(l) Debtor having paid the Borrower’s compliance with scheduled interest payments due and owing for the conditions set forth in clauses (hmonths of November and December 2002 pursuant to Section 3(b)(i) and (i) above of this Section 4Agreement.
Appears in 1 contract
Samples: Waiver and Modification Agreement (U S Plastic Lumber Corp)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction of each amendment of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall the following occur or have been so satisfied, waived in accordance with Section 13.2 of the Existing Credit Agreement (the “Incremental Commitment First Amendment Effective Date”):
(a) The Administrative Agent shall have received a counterpart duly executed counterparts of (i) this Agreement, executed and delivered by a duly authorized officer of Holdings, Amendment Agreement from (A) the Borrower, (B) Continuing Term Loan Lenders constituting the Required Lenders, (C) the New Lender and (D) the Administrative Agent and (ii) the Incremental LenderReaffirmation Agreement attached hereto from each Credit Party.
(b) Each Loan Party shall reaffirm by executing the Guarantee and Collateral Acknowledgement substantially in the form attached hereto as Annex I that the Increased Revolving Commitment shall be secured equally and ratably with the existing Loans by the Collateral.
(c) The Borrower shall have delivered paid to the Administrative Agent, for the account of the Existing Term Loan Lenders, accrued and unpaid interest to (but excluding) the First Amendment Effective Date and, for the account of the Departing Term Loan Lenders only, any other amounts payable to them in connection with this Amendment Agreement in accordance with the terms of the Loan Documents. In addition, the Borrower shall have paid all documentation fees and information as is reasonably requested in writing by the Incremental Lender at least three days other amounts due and payable on or prior to the Incremental Commitment First Amendment Effective Date required pursuant to this Amendment Agreement or as separately agreed by U.S. regulatory authorities under applicable “know your customer” the Borrower and anti-money laundering rules any of the Arrangers and regulations, including without limitation the PATRIOT Act.
(d) All accrued Borrower shall also have reimbursed all reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm the Administrative Agent and the Arrangers relating hereto (including those of counsel) and other compensation due and payable counsel to the Administrative Agent and the Incremental Lender on or prior to the Incremental Commitment Effective Date shall have been paidArrangers).
(ec) The Administrative Agent shall have received (i) a certificate At the time of each Loan Party, dated the Incremental Commitment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrower and its subsidiaries, substantially in the form of Exhibit E to the Credit Agreement, addressed to the Administrative Agent and the Incremental Lender as of the Incremental Commitment Effective Date.
(g) The Administrative Agent shall have received a solvency certificate in form and substance reasonably satisfactory to it from a Responsible Officer of the Borrower that shall document the solvency of the Borrower and its Subsidiaries immediately after giving effect to the Increased Revolving Commitment.
(h) No this Amendment Agreement, no Default or Event of Default shall have occurred and be continuing or would result from the Increased Revolving Commitment requested to be made or from the application of the proceeds therefrom.
(id) Each of the The representations and warranties set forth made or deemed to be made in Section 4 of the Credit this Amendment Agreement (as amended by this Agreement) shall be true and correct in all material respects (and in all respects if respects, except for any such representation and or warranty that is qualified by materiality) on and as of the Incremental Commitment Effective Date as if made on such datemateriality or by reference to Material Adverse Effect, except to the extent that such representations and warranties expressly relate solely to a specific earlier date (in which case such representations and warranties are shall be true and correct in all material respects as of such earlier date)respects.
(je) The Administrative Agent shall have received a certificate from a Responsible Officer certificate, dated the First Amendment Effective Date and signed by an officer of the Borrower documenting Borrower, certifying to the Borrower’s compliance with the conditions matters set forth in clauses (hc) and (id) above of this Section 43.
(f) [reserved]
(g) The Borrower shall have given notice to the Administrative Agent and each Departing Term Loan Lender as required by Section 6.12(b) of the Existing Credit Agreement.
(h) The Administrative Agent shall have received a Notice of Conversion/Continuation from the Borrower with respect to the Initial Term Loans. The Administrative Agent shall notify the Borrower, the Existing Term Loan Lenders and the New Lender of the First Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment Agreement shall not become effective, and the obligations of the applicable Continuing Term Loan Lenders and the New Lender to assume Initial Term Loans as provided for herein will automatically terminate, if each of the conditions set forth or referred to in this Section 3 has not been satisfied at or prior to 11:59 p.m., New York City time, on September 16, 2016 (it being understood that any such failure of this Amendment Agreement to become effective will not affect any rights or obligations of any Person under the Existing Credit Agreement).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Beacon Roofing Supply Inc)
Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the satisfaction obligations of each Tranche B2 Lender to make the Tranche B2 Loans and the amendment of the following conditions (Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which such conditions shall have been so satisfied, the following occur (the “Incremental Commitment Second Amendment Effective Date”):
(a) The Administrative Agent shall have received a counterpart duly executed counterparts of this AgreementAgreement from (A) the Loan Parties, executed (B) the Tranche B2 Lenders and delivered by a duly authorized officer of Holdings, the Borrower, (C) the Administrative Agent and the Incremental LenderAgent.
(b) Each Loan Party The Olympus Acquisition shall reaffirm by executing be consummated substantially contemporaneously with the Guarantee and Collateral Acknowledgement substantially initial funding under the Tranche B2 Facility in accordance with the terms described in the form attached hereto Asset Purchase Agreement, dated as Annex I of February 5, 2020 (the “Acquisition Agreement”), by and between Xxxxxx Xxxxxxxxxxx, a Delaware corporation (the “Seller”), and the Borrower. The (i) representations and warranties made by or on behalf of the Seller in the Acquisition Agreement as are material to the interests of the Tranche B2 Lenders or the Arrangers (in their capacities as such), but only to the extent that the Increased Revolving Commitment Borrower (or any of its affiliates) has the right to terminate its obligations (or to refuse to consummate the Olympus Acquisition) under the Acquisition Agreement as a result of a breach of any of such representations and warranties, shall be secured equally true and ratably correct and (ii) Specified Representations shall be true and correct in all material respects (or in all respects, if qualified by materiality). The Administrative Agent shall have received a certificate, dated the Second Amendment Effective Date from a Financial Officer of the Borrower certifying compliance with the existing Loans by the Collateralthis Section 3(b).
(c) The Borrower Administrative Agent shall have delivered received on or before the Second Amendment Effective Date the following, in form and substance satisfactory to the Administrative Agent and (except for any Tranche B2 Notes) in sufficient copies for each Tranche B2 Lender:
(i) A certificate of the Secretary or Assistant Secretary of each Loan Party dated the Second Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan Party as in effect on the Second Amendment Effective Date and at all documentation times since the date of the resolutions described in the immediately following clause (B), (B) that attached thereto is a true and information as is reasonably requested in writing complete copy of resolutions duly adopted by the Incremental Lender Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents delivered on or about the Second Amendment Effective Date to which such Loan Party is a party and, in the case of the Borrower, the Borrowing under the Tranche B2 Facility, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) 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 (iii) immediately below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ii) A certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(iii) Certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Second Amendment Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity).
(iv) A favorable opinion of Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, counsel for the Borrower and the other Loan Parties, dated as of the Second Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent and the Tranche B2 Lenders in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion.
(v) Any Tranche B2 Notes, to the extent requested at least three days Business Days prior to the Incremental Commitment Second Amendment Effective Date required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actrespective Tranche B2 Lender pursuant to Section 2.16 of the Amended Credit Agreement.
(d) All accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of one firm of counsel) and other compensation due and payable to the Administrative Agent and the Incremental Lender on or prior shall have received a Notice of Borrowing with respect to the Incremental Commitment Tranche B2 Loans to be made on the Second Amendment Effective Date shall have been paidsetting forth the information specified in Section 2.02(a) of the Amended Credit Agreement.
(e) The Administrative Agent shall have received (i) a solvency certificate from a Financial Officer of each Loan Party, dated the Incremental Commitment Effective Date, substantially Borrower in the form of Exhibit C H to the Amended Credit Agreement, with appropriate insertions and attachments and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(f) The Administrative Agent shall have received an executed legal opinion of Xxxxxxxx & Xxxxx LLP, counsel All fees required to be paid by the Borrower hereunder or as separately agreed by the Borrower and its subsidiaries, substantially in any of the form Arrangers or the Tranche B2 Lenders and all invoiced expenses of Exhibit E to the Credit Agreement, addressed Administrative Agent and the Arrangers relating hereto (including those of counsel to the Administrative Agent and the Incremental Lender as Arrangers), shall have in each case been paid.
(g) Each of the Incremental Commitment Arrangers shall have received, at least three Business Days prior to the Second Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer”, anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, and the Borrower shall deliver a certification substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association, that such Arranger has requested at least ten Business Days prior to the Second Amendment Effective Date.
(gh) The Administrative Agent and the Arrangers shall have received received: (i) audited consolidated balance sheets and related statements of income and cash flows of the Transferred Assets (as defined in the Acquisition Agreement) (together with all related business operations and employees, the “Acquired Business”) for the fiscal year ended December 31, 2019 and each subsequent fiscal year ended at least 90 days prior to the Second Amendment Effective Date, and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Acquired Business for September 30, 2019 (it being agreed by the Arrangers that the September 30, 2019 financials have been received) and each subsequent fiscal quarter ended after September 30, 2019 and at least 45 days prior to the Second Amendment Effective Date and (c) a solvency certificate in form pro forma consolidated balance sheet and substance reasonably satisfactory to it from a Responsible Officer related pro forma consolidated statement of income of the Borrower that shall document as of, and for the solvency twelve-month period ending on, the last day of the most recently completed four-fiscal quarter period for which financial statements of the Borrower and its Subsidiaries have been delivered, in each case prepared after giving effect to the Increased Revolving Commitment.
Transactions as if the Transactions had occurred as of such date (hin the case of such balance sheet) No Default or Event at the beginning of Default shall have occurred and be continuing or would result from such period (in the Increased Revolving Commitment requested to be made or from the application case of the proceeds therefromsuch income statement).
(i) Each The Security and Guarantee Documents shall be in full force and effect on the Second Amendment Effective Date. The Collateral Agent, on behalf of the representations Secured Parties, shall have a security interest in the Collateral of the type and warranties priority described in each Security and Guarantee Document. Notwithstanding the foregoing, if, after the use by the Loan Parties of commercially reasonable efforts to cause the conditions relating to the collateral and guarantee matters set forth in Section 4 of the Credit Agreement (as amended by this Agreement3(i) shall above to be true and correct in all material respects (and in all respects if any such representation and warranty is qualified by materiality) on and satisfied as of the Incremental Commitment Second Amendment Effective Date as if made on (other than Collateral in which a security interest therein may be perfected by (A) the filing of a Uniform Commercial Code financing statement, (B) taking delivery and possession of stock (or other equity interest) certificates and related stock powers executed in blank (other than in respect of any Excluded Subsidiary) of the Loan Parties or any subsidiary of the Loan Parties organized outside of the United States) or (C) the filing of a short form security agreement with the United States Patent and Trademark Office or the United States Copyright Office), such date, except conditions shall not be a condition precedent to the extent that funding of the Tranche B2 Loans on the Second Amendment Effective Date, but shall be accomplished as promptly as practicable after the Second Amendment Effective Date and in any event within 30 days or such representations and warranties expressly relate solely later date as the Administrative Agent may agree to a specific earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date).
(j) its sole discretion. The Administrative Agent shall have received a certificate from a Responsible Officer notify the Borrower, the Revolving Credit Lenders, the Term Advance Lenders, the Tranche B Lenders and the Tranche B2 Lenders of the Borrower documenting the Borrower’s compliance with the conditions set forth in clauses (h) Second Amendment Effective Date, and (i) above of this Section 4such notice shall be conclusive and binding absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Science Applications International Corp)