Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived: (i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent; (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto; (iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document; (iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party; (v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and (vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Lear Corp), Credit and Guarantee Agreement (Lear Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution (I) from each Cashless Option Tranche B-2 Lender and (II) from Additional Tranche B-3 Term Loan Lenders having Additional Tranche B-3 Term Loan Commitments equal in principal amount to each the principal amount of Existing Term Lender which has delivered an executed Loans held by Non-Consenting Existing Tranche B-2 Term Loan Lenders and Post-Closing Option Lenders, (ii) from the Administrative Agent, and (iii) from the Borrower and Holdings, either (x) a counterpart of this Amendment (or, in the case of such Cashless Option Tranche B-2 Lenders, a Consent to Amendment No. 4) signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrower shall have paid to all Existing Term Loan Lenders on or prior to the First Amendment No. 4 Effective Date, an amendment fee equal to 1.00% simultaneously with the making (or deemed making) of such Term Lender’s outstanding Tranche B-3 Term Loans under the Credit Agreement, all accrued and unpaid interest on the First Existing Term Loans to, but not including, the Amendment No. 4 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel to the Credit Parties. The Borrower, Holdings and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(d) The Borrower shall have paid (i) the Amendment No. 4 Arrangers the fees in the amounts previously agreed in writing to be received on the Amendment No. 4 Effective Date and (it being agreed that ii) the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counselXxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent and the Amendment No. 4 Arrangers) required of the Administrative Agent for which invoices have been presented prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe Amendment No. 4 Effective Date;
(ive) The representations and warranties set forth in Section 2 above shall be true and correct;
(f) The Administrative Agent (or its counsel) shall have received (A) a certificate of each of (x) Holdings and the Borrower, dated as of the Closing Date, substantially in the form of Exhibit E to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer and the Secretary or any Assistant Secretary of Holdings and the Borrower, as applicable, and attaching the documents referred to in the following clause (B) and (B) (w) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrower authorizing (I) the General execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and the performance of the obligations under the Amended Credit Agreement and (II) in the case of the Borrower, the extensions of credit contemplated hereunder, (x) the Certificate of Incorporation and By-Laws or other comparable organizational documents, as applicable, of Holdings and the Borrower, (y) signature and incumbency certificates of the Authorized Officers of Holdings and the Borrower executing the Credit Documents to which it is a party, and (z) a good standing certificate from the relevant Governmental Authority of the jurisdiction of organization of the Borrower and Holdings, dated the Amendment No. 4 Effective Date or a recent date prior thereto; and
(g) The Administrative Agent shall have received such certificates a Notice of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Borrowing in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount respect of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to B-3 Term Loans in accordance with Section 2.6 2.3 of the Existing Amended Credit Agreement) will be not less than $700,000,000.
Appears in 2 contracts
Samples: First Lien Credit Agreement (BrightSpring Health Services, Inc.), First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon the date satisfaction (the “First Amendment Effective Date”or waiver in writing by each Lender) on which all of each of the following conditions precedent have been satisfied or waivedprecedent:
(ia) receipt by the General Borrower, the Additional Delayed Draw Borrower, the Guarantors, the Administrative Agent shall have received and the Lenders of a counterpart signature of the others to this Amendment, Amendment duly executed and delivered by a duly authorized officer each of the U.S. Borrower, the other BorrowersAdditional Delayed Draw Borrower, the Majority Lenders Guarantors, the Administrative Agent and Extending Lenders the Lenders;
(b) the hiring by Holdings of a Chief Restructuring Officer acceptable to each Lender in its sole and absolute discretion (the “CRO”), reporting directly to the extent required special restructuring committee of the board of directors of Holdings, to (i) oversee all aspects of daily and weekly cash flows, including both receivables and payables management (ii) be granted sole approval rights over all cash disbursements and (iii) develop and ensure compliance with the Weekly Budget;
(c) receipt by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” the Administrative Agent of the Closing Budget in a form as acceptable to the Lenders, collectively, in their sole and absolute discretion;
(d) receipt by the Administrative Agent of all notices, certificates, and other documentation provided by the Administrative AgentBorrower or any of its Affiliates, or any of its or their officers or directors, to Silicon Valley Bank pursuant to the SVB Loan Agreement since April 1, 2017, including any borrowing base certificates, summary accounts receivable and accounts payable agings, and inventory certificates;
(iie) receipt by the General Administrative Agent shall have received an executed Acknowledgment of a payoff letter from Silicon Valley Bank, in form and Consentsubstance satisfactory to each Lender in its sole and absolute discretion;
(f) receipt by the Administrative Agent of a Secretary’s Certificate, with respect to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in substantially the form delivered on the Restatement Date, in each case attaching resolutions of each such Person’s Board of Directors (or other managing body, in the form set forth at case of other than a corporation) then in full force and effect authorizing the end execution, delivery and performance of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a partytransactions contemplated hereby;
(vg) receipt by the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of a copy of a good standing certificate for each of the 2009 Notes as Borrower, the General Administrative Agent may reasonably requireAdditional Delayed Draw Borrower and the Guarantors, dated within 30 days of the date hereof, from the jurisdiction of formation for each such Person; and
(vih) receipt by the General Administrative Administration Agent shall have received evidence of an opinion of counsel to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in form and substance reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000in their sole discretion.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Xtant Medical Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon the date (the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied (the “Amendment No. 1 Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, or waivedelectronic copies or facsimiles followed promptly by originals (unless otherwise specified), each properly executed by a Responsible Officer of the applicable Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Company and the Required Lenders;
(ii) a guaranty substantially in the form of Exhibit G (either directly or via a guaranty supplement) or such other form of guaranty or guaranty supplement to guarantee the Guaranteed Obligations in form and substance reasonably satisfactory to the Administrative Agent and the Company, duly executed by eFunds, it being agreed that for so long as determined the eFunds Bonds are outstanding, eFunds shall guarantee such obligations only up to an amount that is permitted by the General Administrative Agent in its sole discretionindenture governing the eFunds Bonds;
(iii) executed counterparts of the Subsidiary Guaranty Amendment and the Company Supplemental Agreement (b) together with all other fees and amounts due and payable on or prior schedules contemplated thereby, which schedules shall be reasonably satisfactory to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentAdministrative Agent);
(iv) the General Administrative Agent shall have received such Pledge Agreement, duly executed by each Loan Party together with:
(A) certificates of resolutions or other action, incumbency certificates and/or other certificates of representing any certificated Pledged Equity referred to therein accompanied by undated stock powers executed in blank,
(B) a completed Perfection Certificate in the form attached hereto as Annex B dated the Amendment No. 1 Effective Date and executed by a Responsible Officers Officer of each Loan Party (or such other form as may be reasonably acceptable to the General Administrative Agent); and
(C) evidence reasonably satisfactory to the Administrative Agent may that the Liens (if any) indicated on a lien search with respect to each Loan Party in the jurisdiction where such Loan Party is located (within the meaning of Section 9-307 of the Uniform Commercial Code as in effect in the State of New York) either (1) with respect to the Company and its subsidiaries existing prior to the time of the eFunds Merger, are permitted by Section 7.01 or (2) with respect to eFunds and its subsidiaries existing at the time of the eFunds Merger, are disclosed on the schedules to the eFunds Merger Agreement or are otherwise permitted to exist by the eFunds Merger Agreement without giving the Company the right to refuse to close on the eFunds Merger as a result of the existence of such Liens;
(v) evidence (in form reasonably require evidencing satisfactory to the Administrative Agent) of the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such of each Loan Party is a party executing this Amendment, the Subsidiary Guaranty Amendment or is to be a partySubsidiary Guaranty, the Company Supplemental Agreement or any Collateral Document on the Amendment No. 1 Effective Date;
(vvi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date such documents and has taken such other steps in connection with the redemption of the 2009 Notes certifications as the General Administrative Agent may reasonably require; andrequire to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vivii) opinions of counsel to the General Company addressed to each Agent and each Lender providing legal opinions substantially similar to those set forth on Annex C hereto (with standard exceptions and qualifications reasonably acceptable to the Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount Agent);
(viii) a certificate signed by a Responsible Officer of the Tranche A U.S. Revolving Credit Commitments on Company certifying as to the First Amendment Effective Date satisfaction of the conditions set forth in Section 15(f) and (g) of this Amendment;
(ix) a certificate attesting to the Solvency of the Company and the Restricted Subsidiaries (taken as a whole) after giving effect to the minimum Revolving Credit Commitment Reduction eFunds Transactions, this Amendment and each of 33.33% the other transactions contemplated to occur on the Amendment No. 1 Effective Date from the chief financial officer, treasurer or assistant treasurer of the Company; and
(x) copies (certified to be true and complete by the Company) of any amendments to the eFunds Merger Agreement and the disclosure schedules thereto.
(b) All fees and expenses required to be paid on or before the Amendment No. 1 Effective Date shall have been paid in full in cash.
(c) The eFunds Merger Agreement and any simultaneous addition material agreement relating thereto shall not have been altered, amended or otherwise changed or supplemented in a manner material and adverse to the Lenders or any condition therein waived in a manner material and adverse to the Lenders, in each case without the consent of the Arrangers (which shall not be unreasonably withheld or delayed). The eFunds Merger shall have been consummated, or substantially concurrently consummated, in accordance with the terms of the eFunds Merger Agreement.
(d) There shall not have occurred between December 31, 2006 and the Amendment No. 1 Effective Date any new U.S. Revolving event, occurrence, change, state of circumstances or condition which, individually or in the aggregate has had or is reasonably likely to have a “Material Adverse Effect” (as defined in the eFunds Merger Agreement and set forth for ease of reference in the annex attached hereto as Annex A).
(e) The Lenders shall have received (i) audited consolidated financial statements of eFunds for the fiscal year ended December 31, 2006 and (ii) such financial information for periods ending after December 31, 2006 as shall be publicly available prior to the Amendment No. 1 Effective Date (or as may be otherwise delivered to the Company pursuant to Section 2.6 the eFunds Merger Agreement). The Lenders shall have received pro forma consolidated financial statements as to the Company and its Subsidiaries, and forecasts of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Amendment No. 1 Effective Date and on an annual basis for each year thereafter until the Maturity Date.
(f) The representations and warranties of the Existing Company contained in Section 14 of this Amendment and the representations and warranties of the Company and each other Borrower contained in Article 5 of the Credit AgreementAgreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that the only representations involving eFunds and its Subsidiaries, the making of which shall be a condition to the effectiveness of this Amendment, shall be (A) will be not less the representations and warranties made by or with respect to eFunds or its Subsidiaries in the eFunds Merger Agreement as are material to the interests of Lenders, but only to the extent that the Company has the right to terminate its obligations under the eFunds Merger Agreement as a result of a breach of such representations and warranties in the eFunds Merger Agreement and (B) the representations and warranties set forth in Sections 5.02 (other than $700,000,000clause (c)(ii) thereof), 5.04, 5.12 and 5.15 of the Credit Agreement (as amended by this Amendment).
(g) Subject to clause (f) above, no Default shall exist with respect to the Company and its Subsidiaries at the time of, or after giving effect to, the eFunds Transactions and this Amendment.
Appears in 2 contracts
Samples: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Fidelity National Information Services, Inc.)
Conditions to Effectiveness of Amendment. This The effectiveness of the Amendment shall become effective on No. 3 Incremental Commitments and FILO Commitments and the date amendments set forth in Section 2 above are subject to satisfaction (or waiver by the “First Amendment Effective Date”No. 3 Lead Arrangers) on which all of the following conditions precedent (the date of such satisfaction being the “Amendment No. 3 Effective Date”):
(a) The Administrative Agent shall have received counterparts of this Agreement executed by a Responsible Officer of each Loan Party and a duly authorized officer of each Incremental Lender, the Revolving Lenders which constitute the Super Majority Lenders (immediately prior to giving effect to the FILO Commitments), the Assignor Lenders, each Issuing Bank and the Swing Line Lender.
(b) All fees and expenses required to be paid hereunder on the Amendment No. 3 Effective Date and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two Business Days before the Amendment No. 3 Effective Date (except as otherwise reasonably agreed to by the Borrower) shall have been satisfied paid in full, it being agreed that such fees and expenses may be paid with the proceeds of the funding of one or waived:more of the Facilities.
(ic) the General The Administrative Agent shall have received a counterpart certificate from a Responsible Officer of this Amendmenteach Loan Party dated the Amendment No. 3 Effective Date, executed and delivered by a duly authorized officer certifying as to the (A) Organization Documents of the U.S. Borrowereach Loan Party (which, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required filed with a Governmental Authority, shall be certified as of a recent date by clause such Governmental Authority), (viB) below; provided that any Lender may signify certificates of good standing, or its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendmentequivalent, from the secretary of state or other applicable office of the jurisdiction of organization or formation of each Loan Party signatory thereto;
if applicable in the relevant jurisdiction, (iiiC) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, applicable action of each Loan Party and (D) an incumbency certificates certificate and/or other certificates certificate of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require Party, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party it is a party or is to be a party;on the Amendment No. 3 Effective Date.
(vd) the General The Administrative Agent shall have received evidence reasonably satisfactory an opinion from the following special counsel to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption Loan Parties (or certain of the 2009 Notes as Loan Parties): (A) Xxxxxx & Xxxxxxx LLP, with respect to matters of New York and certain aspects of Delaware law and (B) XxXxxxxx Xxxxxxxx LLP, with respect to matters of the General Administrative Agent may reasonably require; andprovinces of British Columbia, Québec and Ontario and the federal laws of Canada applicable therein.
(vie) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that a certificate from the aggregate principal amount chief financial officer or other officer with equivalent duties of the Tranche A U.S. Revolving Credit Commitments on Borrower as to the First Amendment Effective Date Solvency (after giving effect to the minimum Revolving Amendment No. 3 Transactions) of the Borrower.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements of the Amended Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Agreement with respect to the Borrowing on the Amendment No. 3 Effective Date.
(g) The Revolving Lenders pursuant shall have received at least three Business Days prior to Section 2.6 of the Existing Credit AgreementAmendment No. 3 Effective Date (i) will be not less than $700,000,000.all documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower or Co-Borrower qualifies as a “legal entity customer” a Beneficial Ownership Certification, that in each case has been requested in writing at least ten Business Days prior to the Amendment No. 3
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective and the obligations of each Tranche C Term Lender to make a Tranche C Term Loan hereunder on the date (the “First Incremental Facility Amendment Effective Date”) Date are subject to the satisfaction or waiver on which all or prior to the Incremental Facility Amendment Effective Date of each of the following conditions precedent have been satisfied or waivedconditions:
(ia) the General The Administrative Agent shall have received (i) a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. BorrowerBorrower and the Tranche C Term Lenders, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment Acknowledgement and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
and (iii) for the General account of each Tranche C Term Lender that has requested Notes pursuant to the Existing Credit Agreement, Notes with respect to the Tranche C Term Loans conforming to the requirements hereof and executed by a duly Authorized Officer of the Borrower.
(b) The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment opinions, addressed to the General Administrative Agent on or prior to and each of the First Lenders and dated the Incremental Facility Amendment Effective Date, an amendment fee equal from (i) Kxxxxxxx & Exxxx LLP, special New York counsel to 1.00% the Borrower and (ii) Bxxxxx R. Xxxxxx, which opinion shall cover the matters covered in Exhibit E-2 to the Existing Credit Agreement, after giving affect to this Amendment.
(c) The Administrative Agent shall have received from the Borrower, a certificate, dated the Incremental Facility Amendment Effective Date, signed by the Chief Executive Officer, President or any Vice-President and the Secretary of the Borrower in the form of Exhibit C to the Existing Credit Agreement with appropriate insertions and deletions, together with (x) copies of the resolutions, or such Term Lender’s outstanding other administrative approval, of the Borrower approving the Tranche C Term Loans on to be reasonably satisfactory to the First Amendment Effective Date Administrative Agent and (it being agreed y) a statement that all of the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart applicable conditions set forth in Sections 3(f) and 3(g) of this Amendment have been satisfied as of such date.
(d) The Administrative Agent shall have received from the President, Chief Financial Officer or another senior financial or accounting officer of the Borrower a reasonably satisfactory solvency certificate that shall document the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the General transactions contemplated hereby.
(e) The Tranche C Term Lenders, the Administrative Agent on or prior and each Lead Arranger shall have received all fees required to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersbe paid, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior expenses required to the First Amendment Effective Date be paid for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed on or paid by any Loan Party hereunder or under any other Loan Document;before the Incremental Facility Amendment Effective Date.
(ivf) All representations and warranties contained in the General Administrative Agent shall have received such certificates of resolutions Existing Credit Agreement (as amended by this Amendment) or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding in effect on the First Incremental Facility Amendment Effective Date both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Tranche C Term Loans shall be true and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Existing Credit AgreementIncremental Facility Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and except to the extent already qualified by materiality, in which case such representations and warranties shall be true and correct in all respects.
(g) will After giving effect to this Amendment, no Default or Event of Default shall have occurred and be not less than $700,000,000continuing.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when and only when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Majority LendersLenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) The Administrative Agent’s receipt of the following, as determined each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to the Administrative Agent:
(i) counterparts of the Amendment Documents executed by the General applicable Credit Parties sufficient in number for distribution to the Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentBorrower;
(ivii) a certificate on behalf of each Credit Party certifying that none of the General Administrative Agent shall have received such certificates of resolutions or other actionresolutions, incumbency certificates certificates, organizational documents and/or other certificates of Responsible Officers of each Loan Credit Party as the General Administrative Agent may reasonably require has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Credit Party is a party have been amended or is are otherwise inaccurate since they were delivered.
(b) Any fees required to be a party;paid on or before the Effective Date shall have been paid.
(vc) Unless waived by the General Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice extent invoiced prior to redeem all 2009 Notes outstanding or on the First Amendment Effective Date Date, plus such additional amounts of such fees, charges and has taken disbursements as shall constitute its reasonable estimate of such other steps in connection with fees, charges and disbursements incurred or to be incurred by it through the redemption closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the 2009 Notes as Borrower and the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Agent).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waivedare satisfied:
(ia) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by the General Borrower, each Subsidiary Guarantor, the Issuing Bank and each Lender.
(b) The Administrative Agent shall have received reimbursement for all of its reasonable out-of-pocket costs and expenses in accordance with Section 2.4 hereto.
(c) The Administrative Agent shall have received, for its account and on account of each Lender, all fees in connection with this Amendment in accordance with any fee letter or commitment letter, between the Borrower and ING or the Borrower and any Lender.
(d) The Borrower shall have paid to the Administrative Agent and the Lenders all accrued but unpaid interest as of the date hereof, calculated at the rate set forth in the Credit Agreement (for clarity, without giving effect to the Amendment).
(e) The Administrative Agent shall have received a counterpart favorable written opinion (addressed to the Administrative Agent and the Lenders and dated as of the date hereof) of Xxxxx & Xxxxxx, LLP, counsel for the Obligors, in form and substance reasonably acceptable to the Administrative Agent and covering this Amendment and any other matter as the Administrative Agent may reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(f) The Administrative Agent shall have received: (i) a certificate, from the secretary of each Obligor, that there has been no change to the organizational documents of each Obligor delivered as of February 22, 2011, (ii) signature and incumbency certificates of the officers of such Person executing this Amendment, (iii) resolutions of the board of directors or similar governing body of each Obligor approving and authorizing the execution, delivery and performance of this Amendment, executed (iv) a good standing certificate from the applicable Governmental Authority of each Obligor's jurisdiction of incorporation, organization or formation and delivered by in each jurisdiction in which it is qualified as a duly authorized officer foreign corporation or other entity to do business, each dated a recent date prior to the date hereof, and (v) such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the U.S. BorrowerObligors, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart authorization of this Amendment and any other legal matters relating to the General Obligors, all in form and substance satisfactory to the Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in and its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Conditions to Effectiveness of Amendment. This The obligations of the Lenders herein and the effectiveness of the other provisions of this Amendment shall become effective on be subject to the date (the “First Amendment Effective Date”) on which all fulfillment of the following conditions precedent in a manner satisfactory to the Agent:
(a) The Agent shall have been satisfied or waived:received all the following (each of the following documents in form and substance satisfactory to the Agent):
(i) A copy of the General Administrative Agent shall have received a counterpart resolutions of the Board of Directors of the Borrower, dated on the date hereof, certified by the Secretary of Assistant Secretary of the Borrower, authorizing the execution, delivery and performance by the Borrower of this Amendment, executed Amendment and any other document to be delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentBorrower pursuant hereto;
(ii) A certificate of the General Administrative Agent shall have received Secretary or an executed Acknowledgment Assistant Secretary of the Borrower, dated on the date hereof, as to the incumbency and Consentsignature of the officers of the Borrower authorized to sign this Amendment and any other document to be delivered by the Borrower pursuant hereto, in together with evidence of the form set forth at the end incumbency of this Amendment, from each Loan Party signatory theretosuch Secretary or Assistant Secretary;
(iii) All consents, approvals, waivers, authorizations and orders of any courts or governmental authorities (including, without limitation, federal and state banking authorities) or third parties required in connection with the General Administrative execution, delivery and performance by the Borrower of this Amendment and each document to be delivered by Borrower pursuant hereto and the performance of the transaction contemplated hereby; and
(iv) All other documents the Agent may reasonably request with respect to any matter relevant to this Amendment and the transactions contemplated hereby;
(b) The representations and warranties contained in the Credit Agreement, as amended hereby, shall be true and correct in all material respects on and as of the date hereof and on and as of the date of actual execution and delivery hereof by the Borrower; and
(c) All corporate and legal proceedings and all documents required to be completed and executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by, this Amendment and any related agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart all information and copies of all documents, including records of corporate proceedings, required by this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required any related agreements to be reimbursed executed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) which the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer have requested in connection with this Amendment and the other Loan Documents to which therewith, such Loan Party is a party or is documents, where appropriate, to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000certified by proper corporate or governmental authorities.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment (other than with respect to Section 3.1) shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been are satisfied or waived:
(a) The Administrative Agent (or its counsel) shall have received from the Administrative Agent, the L/C Issuer, the Swingline Lender, the Borrower, Holdings and Lenders constituting the Required Lenders either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the General Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received the net cash proceeds (the “Notes Proceeds”) from the incurrence of at least $1.5 billion of February 2013 First Lien Notes, to be applied to repay Term Loans as follows:
(i) first, to repay the aggregate principal amounts of Term B-1 Loans, Term B-2 Loans and Term B-3 Loans held by each Consenting Lender (other than a counterpart of this Amendment, executed and delivered by a duly authorized officer of Defaulting Lender) on the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Amendment Effective Date which such Consenting Lender has elected to the extent required by clause be repaid at par as set forth on such Lender’s Consent Form (vi) as defined below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent);
(ii) second, to the General repayment of the aggregate principal amounts of Term B-5 Loans and Term B-6 Loans (such Lender’s “B5/B6 Submitted Amount”) held by each Consenting Lender (other than a Defaulting Lender) on the Amendment Effective Date which such Consenting Lender has elected to be repaid at par as set forth on such Lender’s Consent Form; provided that, if the aggregate B5/B6 Submitted Amount of all Consenting Lenders exceeds the lesser of (x) 20% of the outstanding principal amount of all Term B5 Loans and Term B-6 Loans on the Amendment Effective Date and (y) the amount of Notes Proceeds remaining after the application of the repayments pursuant to clause (i) above, the Borrower shall repay portions of the B5/B6 Submitted Amount on a ratable basis among such Consenting Lenders up to such lesser amount; and
(iii) third, to repay Term Loans elected to be repaid by the Borrower on the Amendment Effective Date.
(c) The Administrative Agent shall have received an executed Acknowledgment from the Borrower a consent fee payable for the account of each Consenting Lender (other than a Defaulting Lender) holding outstanding Revolving Facility Commitments or Term B-4 Loans as of the Amendment Effective Date equal to 0.10% of the sum of (x) the aggregate principal amount of Term B-4 Loans, if any, held by such Lender as of the Amendment Effective Date with respect to which a consent was delivered and Consent(y) the aggregate amount of the Revolving Facility Commitments, in if any, of such Lender as of the form set forth at the end of this Amendment, from each Loan Party signatory thereto;Amendment Effective Date with respect to which a consent was delivered.
(iiid) the General The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent all fees payable thereto on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment and, to the General Administrative Agent extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority LendersEffective Date, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior including, to the First Amendment Effective Date for which invoices have been presentedextent invoiced, including reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counselXxxxxx, Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by any the Loan Party Parties hereunder or under any other Loan Document;.
(ive) A reaffirmation agreement substantially in the General form previously delivered under the Credit Agreement shall have been executed and delivered by each party thereto.
(f) The Administrative Agent shall have received such certificates received, on behalf of resolutions itself, the Lenders and the L/C Issuer on the Amendment Effective Date, a written opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP or other actioncounsel reasonably acceptable to the Administrative Agent, incumbency certificates and/or as counsel for the Loan Parties, and (ii) each local counsel specified on Schedule 1 or other certificates of Responsible Officers of counsel reasonably acceptable to the Administrative Agent, in each Loan Party as case (a) dated the General Amendment Effective Date, (b) addressed to the Administrative Agent may reasonably require evidencing Agent, the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Lenders and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding L/C Issuer on the First Amendment Effective Date and has taken (c) in form and substance reasonably satisfactory to the Administrative Agent. Each Loan Party hereby instructs its counsel to deliver such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andopinions.
(vig) the General Administrative Agent The Borrower shall have received evidence reasonably satisfactory to it that the aggregate principal amount applicable regulatory approval for effectiveness of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect other than with respect to the minimum Extended Maturity Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders Facility Commitments to be established pursuant to Section 2.6 3.1 hereof) and the offering of the Existing Credit Agreement) will be not less than $700,000,000February 2013 First Lien Notes.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:
(such date, the “Eleventh Amendment Effective Date”); provided that the Required Lenders (excluding (i) Total Revolving Credit Outstandings for the General purposes of paragraph (a) of such definition and (ii) Required Lenders under paragraph (c) of such definition) shall not have objected to this Amendment within five (5) Business Days after the Administrative Agent has posted this Amendment to all Lenders.
(a) the Borrower Representative, each Revolving Credit Lender and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent;
(b) the Administrative Agent and Collateral Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
(c) each of the representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Eleventh Amendment Effective Date;
(d) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Eleventh Amendment Effective Date, no Default or Event of Default exists;
(e) the Administrative Agent shall have received a counterpart of this Amendment, executed certificate dated the Eleventh Amendment Effective Date and delivered signed by a duly authorized officer Responsible Officer of the U.S. BorrowerBorrower Representative, confirming compliance with the other Borrowers, the Majority Lenders conditions set forth in Sections 3(c) and Extending Lenders to the extent required by clause (vi3(d) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenthereof;
(iif) the General Administrative Agent and Collateral Agent shall have received an executed Acknowledgment received, on behalf of itself and Consent, in the form set forth at Lenders on the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Eleventh Amendment Effective Date, an amendment fee equal to 1.00% a customary written opinion of such Term Lender’s outstanding Term Loans on local counsel as specified in Schedule A-2 hereto, in each case (i) dated the First Eleventh Amendment Effective Date Date, (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment ii) addressed to the General Administrative Agent on or prior and the Lenders and (iii) in form and substance reasonably satisfactory to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior covering such matters relating to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents as the Administrative Agent shall reasonably request; provided that counsel to which the Administrative Agent shall provide such Loan Party is a party or is opinions to the extent customary in any applicable jurisdiction to be a partymutually agreed;
(vg) the General Administrative Agent shall have received evidence reasonably satisfactory (i) a certificate of each Loan Party that is required to it that deliver the U.S. Borrower has given an irrevocable call notice Collateral Documents and other documentation identified on Schedule A-1 hereto pursuant to redeem all 2009 Notes outstanding on paragraph (a) above, dated the First Eleventh Amendment Effective Date and has taken executed by a Responsible Officer of such Loan Party, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors, members or other steps governing body (to the extent applicable) authorizing the execution, delivery and performance of the Collateral Documents and other documentation to which it is a party, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the Responsible Officer or authorized signatory of such Loan Party authorized to sign the Collateral Documents and other documentation to which it is a party and (C) certify that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by- laws or operating, management, partnership or similar agreement (to the extent applicable) and that such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the state of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party), and (iii) in relation to each Loan Party incorporated or established in Italy, (A) a copy of the constitutional documents of such Loan Party, (B) a copy of a resolution of the board of directors or of the shareholder’s meeting of such Loan Party (1) approving the terms of, and the transactions contemplated by, the the Collateral Documents and other documentation to which it is a party and resolving that it execute, deliver and perform the Collateral Documents and other documentation to which it is a party, (2) authorizing a specified person or persons to execute the the Collateral Documents and other documentation to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the redemption the Collateral Documents and other documentation to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the the Collateral Documents and other documentation to which it is a party, (C) a specimen of the 2009 Notes signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the the Collateral Documents and other documentation to which it is a party, (D) an up-to-date electronic certified true and complete certificate of good standing (certificato di iscrizione e vigenza), issued by the relevant Companies Register (Registro delle Imprese) no earlier than three Business Days prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to each relevant Loan Party incorporated or established in Italy, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the General Administrative Agent may reasonably requireEleventh Amendment Effective Date; and
(vih) all fees and expenses agreed to by the General Borrowers or the Borrower Representative that are due and payable to the Administrative Agent shall and the Collateral Agent, for which invoices have received evidence reasonably satisfactory been presented to it that the aggregate principal amount of Parent at least three Business Days prior to the Tranche A U.S. Revolving Credit Commitments Eleventh Amendment Effective Date, on or before the First Eleventh Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction including reasonable and documented out-of-pocket fees, expenses and disbursements of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000legal counsel).
Appears in 1 contract
Samples: Credit Agreement (Orion S.A.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have been satisfied or waived:waived in accordance with the terms hereof and the Credit Agreement (such date, the “Effective Date”):
(i) 4.1 this Amendment shall have been executed and delivered by the General Borrowers, the Administrative Agent, the Required Lenders and the 2015-1 Incremental Term A Loan Lenders;
4.2 the Administrative Agent shall have received a counterpart certificate of this Amendmentthe Parent Borrower dated as of the Effective Date, duly executed and delivered by a duly authorized officer an Authorized Officer of the U.S. Borrower, Parent Borrower (i) (A) certifying and attaching the other Borrowers, resolutions or similar consents adopted by the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent Parent Borrower approving or consenting to this Amendment by instead and the incurrence of the 2015-1 Incremental Term A Loans, (B) certifying that the certificate or articles of incorporation and by-laws of the Parent Borrower either (x) has not been amended since the Closing Date or (y) is attached as an exhibit to such certificate, and (C) certifying as to the incumbency and specimen signature of each officer executing a “lender addendum” in a form as provided by this Amendment and any related documents on behalf of the Administrative Agent;
Parent Borrower and (ii) certifying as to the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form matters set forth at the end of this Amendment, from each Loan Party signatory theretoin Sections 4.5 below;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) 4.3 all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses for which invoices have been presented prior to the Effective Date (including the reasonable fees, charges fees and disbursements expenses of legal counsel) required to be paid or reimbursed by the Borrowers pursuant to Section 10.3 of the Credit Agreement or paid by any Loan Party hereunder or under any other Loan Documentletter agreement in connection with this Amendment shall have been paid or reimbursed;
(iv) 4.4 the General Administrative Agent shall have received such certificates opinions, dated as of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Effective Date and addressed to the Administrative Agent may reasonably require evidencing and all 2015-1 Incremental Term A Loan Lenders, from (i) Xxxxxxxx & Xxxxx LLP, counsel to the identityParent Borrower, authority in form and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence substance reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
and (viii) Maryland counsel to the General Administrative Agent shall have received evidence Parent Borrower, in form and substance reasonably satisfactory to it that the aggregate principal amount Administrative Agent;
4.5 the representations and warranties in Section 5 of this Amendment shall be true and correct in all material respects as of the Tranche A U.S. Revolving Effective Date;
4.6 the Parent Borrower shall be in compliance with Section 7.2.4 of the Credit Commitments on the First Amendment Effective Date (Agreement both before and after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 incurrence of the Existing Credit Agreement) will 2015-1 Incremental Term A Loans; and
4.7 the Senior Secured Leverage Ratio shall be not less than $700,000,0003.00 to 1.00 both before and after giving effect to the incurrence of the 2015-1 Incremental Term A Loans (assuming, for the purposes of the calculations under this Section 4.7, that the Revolving Commitments are 50% drawn and that all Permitted Securitization is 50% utilized).
Appears in 1 contract
Samples: Credit Agreement (Hanesbrands Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on The effectiveness of this Incremental Amendment, including the obligation of the 2018 Incremental Term B Lender to make a 2018 Incremental Term B Loan, is subject to the satisfaction or waiver of the following conditions (the date (of such satisfaction or waiver of such conditions being referred to herein as the “First 2018 Incremental Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:):
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, Incremental Amendment executed and delivered by a duly authorized officer of the U.S. Borrower, each other Loan Party and the 2018 Incremental Term B Lender (which constitutes Required Lenders under the Credit Agreement).
(b) The Administrative Agent shall have received, on behalf of itself and the 2018 Incremental Term B Lender, customary legal opinions, customary officer’s closing certificates, organizational documents, customary evidence of authorization and good standing certificates in jurisdictions of formation or organization, in each case, with respect to the Borrower and the other BorrowersLoan Parties. Subject to clause (l) of this Section 3, all documents and instruments required to create and perfect the Administrative Agent’s security interests in the Collateral shall have been executed and delivered by the Borrower and the Guarantors (or, where applicable, the Majority Lenders Borrower and Extending Lenders the Guarantors shall have authorized the filing of financing statements under the Uniform Commercial Code) and, if applicable, be in proper form for filing.
(c) A certificate of a Responsible Officer of the Borrower certifying that (i) the conditions in clauses (h), (j) and (k)(ii) of this Section 3 have been satisfied and (ii) the 2018 Incremental Term B Loans are being incurred in reliance on Section 2.17(a)(iii) of the Existing Credit Agreement.
(d) To the extent such documentation has not previously been delivered in connection with the funding of the Initial Term B Loans under the Existing Credit Agreement, the Administrative Agent and the 2018 Incremental Term B Lender shall have received at least three (3) business days prior to the 2018 Incremental Amendment Effective Date, all documentation and other information required with respect to the Loan Parties by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” reasonably requested in a form as provided writing by the Administrative Agent;Agent or the 2018 Incremental Term B Lender at least ten (10) business days prior to the 2018 Incremental Amendment Effective Date. To the extent the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least three (3) business days prior to the 2018 Incremental Amendment Effective Date, the 2018 Incremental Term B Lender that has requested, in a written notice to the Borrower at least ten (10) business days prior to the 2018 Incremental Amendment Effective Date, a beneficial ownership certification as required by the Beneficial Ownership Regulation in relation to the Borrower shall have received such beneficial ownership certification.
(e) All fees and expenses (in the case of expenses, to the extent invoiced at least three (3) business days prior to the 2018 Incremental Amendment Effective Date (except as otherwise reasonably agreed by the Borrower)), required to be paid on the 2018 Incremental Amendment Effective Date, shall have been paid, or shall be paid substantially concurrently with, the borrowing of the 2018 Incremental Term B Loans.
(f) The Administrative Agent shall have received a Borrowing Request in respect of the 2018 Incremental Term B Loans as required by Section 2.03 of the Existing Credit Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower, in substantially the form of Exhibit G to the Existing Credit Agreement, certifying that the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent.
(h) The Acquisition and the other Transactions shall have been, or shall substantially concurrently with the initial funding of the 2018 Incremental Term B Loans be, consummated in all material respects in accordance with the terms of the Acquisition Agreement without any amendments, waivers or consents that are materially adverse to the interests of the 2018 Incremental Term B Lender or Xxxxxx Xxxxxxx Senior Funding, Inc. as the lead arranger and bookrunner (the “Lead Arranger”) for the 2018 Incremental Term B Loans without the prior written consent (not to be unreasonably withheld, delayed or conditioned) of the Lead Arranger (it being understood and agreed that any amendment or waiver of the definition of Company Material Adverse Effect (as defined in the Acquisition Agreement), will be deemed to be materially adverse to the interests of the 2018 Incremental Term B Lender or the Lead Arranger).
(i) Since December 31, 2017, there shall have been no Company Material Adverse Effect (as defined in the Acquisition Agreement).
(j) As of the 2018 Incremental Amendment Effective Date, no Event of Default under clauses (a), (b), (h) or (i) of Section 7.01 of the Existing Credit Agreement is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof.
(k) As of the 2018 Incremental Amendment Effective Date: (i)each of the representations made by Target in the Acquisition Agreement as are material to the interests of the 2018 Incremental Term B Lender shall be true and correct, but only to the extent that the failure to so be true and correct would provide the Borrower the right to terminate its obligations under the Acquisition Agreement, or the right to decline to consummate the Acquisition, as a result of a breach of such representations in the Acquisition Agreement; and
(ii) the General Administrative Agent shall have received an executed Acknowledgment representations and Consent, in warranties of each of the form Borrower and the Guarantors (after giving effect to the Transactions) set forth at in Sections 3.01, 3.02, 3.03(b), (c) and (d), 3.09, 3.14, 3.17, 3.19 and 3.20 of the end of this Amendment, from each Loan Party signatory thereto;Existing Credit Agreement shall be true and correct.
(iiil) The security interest that will be granted in Collateral of any entities that will become Guarantors in connection with the General Administrative Agent Transactions under the Loan Documents shall be created and perfected, to the extent that perfection therein may be perfected by the filing of a UCC financing statement, upon the creation and perfection of such security interest or the delivery of certificates evidencing equity interests; provided that any such certificated equity interests with respect to subsidiaries of the Target will be required to be delivered on the 2018 Incremental Amendment Effective Date only to the extent received from the Target after your use of commercially reasonable efforts to obtain such certificates.
(m) The 2018 Incremental Term B Lender shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and Target for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date2015, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders2016 and 2017 fiscal years, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees unaudited consolidated balance sheet and amounts due related statement of income, stockholders’ equity and payable on or cash flow of the Borrower and the Target for each subsequent fiscal quarter ended at least 45 days prior to the First 2018 Incremental Amendment Effective Date for which invoices Date. The making of the 2018 Incremental Term B Loans by the 2018 Incremental Term B Lender shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and the 2018 Incremental Term B Lender that each of the conditions precedent set forth in this Section 3 shall have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed satisfied in accordance with its respective terms or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received been irrevocably waived by such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Person.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective as of the date first above written (the "EFFECTIVE DATE") on the date (the “First Amendment Effective Date”) on which all of first day when the following conditions precedent have been satisfied or waivedsatisfied:
(ia) This Amendment shall have been executed and delivered by Borrower, the General Administrative Lenders, the Agent and the Co-Agent;
(b) Borrower shall have executed and delivered to the Lenders a letter agreement pursuant to which Borrower shall have agreed to enter into an amendment and supplement to the Warrant Agreement dated as of July 31, 1996 among Vari-Lite International, Inc. and certain of the Lenders, providing for reductions in the exercise price of the common stock purchase warrants issued pursuant to the terms of such Warrant Agreement, and the issuance of additional common stock purchase warrants to Chase Bank of Texas, N.A., in form and substance satisfactory to the Lenders;
(c) The Agent shall have received a counterpart certificate of the Secretary or Assistant Secretary of Borrower attaching and certifying copies of the resolutions of the board of directors of Borrower authorizing the execution, delivery and performance of this Amendment and all other documents to be executed and delivered by Borrower pursuant to the terms of this Amendment;
(d) The Agent shall have received a certificate of Borrower dated as of the date hereof, signed by the Secretary or an Assistant Secretary of Borrower certifying (i) as to the name(s), true signature(s) and incumbency of the officer(s) of Borrower authorized to execute and deliver this Amendment and each other document being executed and delivered pursuant to the requirements of this Amendment, executed and delivered by a duly authorized officer (ii) that Borrower's articles or certificate of incorporation and by-laws attached to such certificate have not been amended or modified and are in full force and effect as of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agentdate hereof;
(iie) the General Administrative The Agent shall have received an executed Acknowledgment the favorable opinion of Xxxxxx & Xxxxxx, L.L.P., counsel to Borrower, addressed to the Agents and Consentthe Lenders, in covering such matters relating to Borrower and the form set forth at transactions contemplated by this Amendment as the end of this Amendment, from each Loan Party signatory thereto;Lenders may request; and
(iiif) the General Administrative The Agent shall have received (a) payment in full from Borrower for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s all outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) costs and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be paid or reimbursed or paid by any Loan Party hereunder or Borrower under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000, including without limitation, all professional fees and expenses of counsel for the Agents.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent Lender shall have been satisfied or waived:
received (i) counterparts of this Amendment duly executed by each of the General Administrative Agent shall have received a counterpart Loan Parties; (ii) the Third Amended and Restated Revolver Note, dated as of the date of this Amendment, in substantially the form attached hereto as Exhibit A, executed by the Borrower; (iii) certified copy of the resolutions of the Board of Directors of the Borrower and each of the Guarantors, evidencing approval of this Amendment and the other documents and matters contemplated hereby, (iv) a signed copy of a certificate of an officer of the Borrower and each of the Guarantors who shall certify the names of the officers of the Borrower and the respective Guarantors authorized to sign this Amendment and the other documents or certificates to be delivered pursuant to this Amendment by the Borrower, each of the Guarantors, or any of its respective officers, together with the true signatures of such officers and (v) a certificate, in substantially the form attached hereto as Exhibit B, signed by the President, Vice President or by any other duly authorized officer of the U.S. Borrower, solely in such corporate capacity, stating that, based on an examination which in the other Borrowersopinion of the signer is sufficient to enable him to make an informed statement, to the Majority Lenders best of his knowledge:
(a) The representations and Extending Lenders warranties contained in Section 4.01 of the Agreement are correct on and as of the date of this Amendment as though made on and as of such date except to the extent required by clause (vi) below; provided that any Lender may signify its consent such representations and warranties specifically relate to this Amendment by instead executing a “lender addendum” in a form as provided an earlier date or are affected by the Administrative Agent;transaction contemplated under the Agreement as amended hereby; and
(iib) the General Administrative Agent shall have received an executed Acknowledgment No event has occurred and Consent, in the form set forth at the end of is continuing or would result from this Amendment, from each Loan Party signatory thereto;which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both; and
(iiiix) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined payment by the General Administrative Agent in its sole discretion) and (b) all other Borrower of the fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedcosts, including all reasonable out-of-pocket expenses (including reasonable feesattorneys’ fees and expenses, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and the other Loan Documents to documents and matters contemplated hereby, and all fees and costs still outstanding which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps were incurred in connection with the redemption of Agreement and the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (PBSJ Corp /Fl/)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all first set forth above upon satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this Amendment, Amendment duly executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent, each Extending Tranche A Term Loan Lender, each Extending Tranche B Term Loan Lender and the Required Lenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment and Consentreceived, in for the form set forth at the end account of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of executing this Amendment to the General Administrative Agent on or prior to the First Amendment Effective DateMarch 25, 2003 an amendment fee equal to 1.000.250% of the sum of each such Term executing Lender’s outstanding 's Revolving Credit Commitment and Term Loans on the First then outstanding (in respect of each such Lender, an "Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentFee");
(ivc) the General Administrative Agent Equity Investor or an Affiliate thereof shall have received contributed Senior Subordinated Notes in an aggregate principal amount of no less than $90,000,000 to the Borrower in exchange for Series C Perpetual Preferred Stock, and such certificates Senior Subordinated Notes shall have been delivered to the trustee in respect of resolutions the Senior Subordinated Note Indenture for cancellation;
(d) the Equity Investor or other action, incumbency certificates and/or other certificates an Affiliate thereof shall have contributed cash to the Borrower in an amount of Responsible Officers no less than $10,000,000 in exchange for Series C Perpetual Preferred Stock;
(e) the Line of each Loan Party Credit Agreement shall (i) have been amended with respect to its maturity as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized set forth in Exhibit B to act as a Responsible Officer in connection with this Amendment and (ii) conform to the other Loan Documents to which terms set forth in such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireExhibit B; and
(vif) the General Administrative Agent Borrower shall have received evidence reasonably satisfactory paid to it (i) each Extending Tranche A Term Loan Lender a fee in an amount equal to 10.0% of the portion (and only that the aggregate principal amount portion) of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect Term Loan held by such Lender which had its amortization extended pursuant to the minimum Revolving Credit Commitment Reduction Sixth Amendment and (ii) each Extending Tranche B Term Loan Lender a fee in an amount equal to 10.0% of 33.33% the portion (and any simultaneous addition only that portion) of any new U.S. Revolving Lenders the Tranche B Term Loan held by such Lender which had its amortization extended pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Sixth Amendment.
Appears in 1 contract
Samples: Credit Agreement (Panavision Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First "Amendment Effective Date”") on which all upon (a) payment by the Borrower to the Agent, for the account of the following conditions precedent have been satisfied or waivedLender, an activation fee in the amount of $25,000 pursuant to Section 4.2(b) of the Loan Agreement, and (b) receipt by the Agent of the following, each in form and substance satisfactory to the Agent:
(i) the General Administrative Agent shall have received a counterpart counterparts of this Amendment, duly executed and delivered by a duly authorized officer of the U.S. each Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment Amended and Consent, Restated Revolving Credit Note in the form set forth at the end of this Amendment, from attached hereto as Annex A duly executed by each Loan Party signatory theretoBorrower;
(iii) an Acquisition Loan Note substantially in the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart form of this Amendment Exhibit B-3 attached to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an Loan Agreement duly executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documenteach Borrower;
(iv) certified copies of the General Administrative Agent shall have received such certificates articles of resolutions or incorporation and bylaws of Mobile Products, as in effect on the Amendment Effective Date, and with respect to the other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Borrowers and the other Loan Documents Guarantors, a certificate of an appropriate officer of such Borrowers and Guarantors to the effect that none of such documents relating to such Borrowers and Guarantors have been amended or otherwise modified since April 21, 1999 (with respect to Mid Bus and Brutzer) and July 31, 1998 (with respect to Xxxxxxx, Bus, WCI, Capacity, Mobile, World Trans and Guarantors), the respective dates on which such documents were last delivered to Agent and Lender under the Loan Party is a party or is to be a partyAgreement;
(v) certificates of incumbency and specimen signatures with respect to each of the General Administrative Agent shall have received evidence reasonably satisfactory officers of the Borrowers and the Guarantors who is authorized to execute and deliver the Loan Documents to which it is a party and each other certificate, agreement or other document to be executed by the Borrowers and the Guarantors in connection with this Amendment;
(vi) a certificate evidencing the good standing of Mobile Products in the jurisdiction of its incorporation and in each other jurisdiction in which it is required to be qualified as a foreign corporation to transact business as presently conducted;
(vii) a certificate of the President of Xxxxxxx or of the Financial Officer that all representations and warranties of Borrowers set forth in the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Loan Documents are true and correct as of the First Amendment Effective Date and has taken such other steps in connection with the redemption that no Default or Event of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date Default exists (after giving effect to this Amendment and the minimum Revolving Credit Commitment Reduction of 33.33% Xxxxxx Acquisition), and any simultaneous addition of any new U.S. Revolving Lenders pursuant Agent and Lender shall be satisfied as to Section 2.6 the truth and accuracy thereof;
(viii) amendments or modifications to each of the Existing Credit Mortgages existing on the Amendment Effective Date and endorsements to related title insurance policies;
(ix) Certified copies of the executed Asset Purchase Agreement dated as of September 1, 2000, between Xxxxxxx, Mobile Products, Xxxxxx, Inc., an Oklahoma corporation and Celstar Group, Inc., an Ohio corporation (the "Xxxxxx Acquisition") and all documents and agreements executed in connection with such Acquisition.
(x) Executed Mortgages on Acquired Real Estate in connection with the Xxxxxx Acquisition and related title insurance policies.
(xi) Financing Statements duly executed and delivered by Mobile Products and Xxxxxxx;
(xii) a Trademark Assignment duly executed and delivered by Mobile Products;
(xiii) a Patent Assignment duly executed and delivered by Mobile Products;
(xiv) a Collateral Assignment of Rights Under Acquisition Agreement, in form and substance satisfactory to the Agent, duly executed and delivered by Mobile Products and Xxxxxxx;
(xv) will evidence of payment or arrangements for payment of all Debt and the termination or arrangements for termination of all Liens not permitted under the Loan Documents;
(xvi) a signed opinion of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel for the Borrowers, and of such local counsel for the Borrowers as may be not less than $700,000,000required, opining as to such matters in connection with the transactions contemplated by this Amendment as the Agent or its special counsel may reasonably request;
(xvii) updated Schedules to the Loan Agreement as necessary to reflect accurately as of the Amendment No. 2 Effective Date the facts purported to be set forth therein;
(xviii) a consent duly executed by each Guarantor; and
(xix) such other documents and instruments as the Agent may reasonably request.
Appears in 1 contract
Samples: Loan and Security Agreement (Collins Industries Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have has been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of the U.S. Borrower, Credit Parties and all the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment payment of any and Consent, all fees owing in the form set forth at the end of connection with this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received including (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% in the amount of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term $5,000.00 for each Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and a commitment increase fee payable to each Lender whose Commitment is being increased pursuant to this Amendment in the amount of 7.5 basis points (0.075%) on or prior the amount of such increase.
(c) to the First Amendment Effective Date for which invoices extent invoiced, the Lenders, the Agent and the Book-Runner shall have been presented, including all reasonable received payment or reimbursement of their out-of-pocket expenses (in connection with this Amendment and any other out-of-pocket expenses of the Lenders, the Agent or the Book-Runner required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentcounsel for the Agent;
(ivd) the General Administrative Agent Borrowers shall have received delivered to the Agent such certificates of resolutions or other actionauthorized officers of the Borrowers and the Guarantors, incumbency certificates and/or other certificates of Responsible Officers Governmental Authorities, certified copies of each Loan Party the certificates of incorporation, formation, bylaws and operating agreements, as applicable, of the Borrowers and the Guarantors (or certified confirmation that no amendments, modifications or revisions have been to those previously certifies and delivered to the Agent, as applicable), certified copies of resolutions of the directors, managers or members, as applicable of the Borrowers and the Guarantors and such other documents, instruments and agreements as the General Administrative Agent may reasonably shall require evidencing to evidence the identityvalid corporate existence and authority to conduct business of the Borrowers and the Guarantors and the due authorization, authority execution and capacity delivery of each Responsible Officer thereof authorized this Amendment any other documents related to act as a Responsible Officer in connection with this Amendment and any other legal matters relating to the Borrowers, the Guarantors, any Subsidiary or the other Loan Documents by the Borrowers and/or the Guarantors, all in a form and substance reasonable satisfactory to which such Loan Party is a party or is to be a partythe Agent and its counsel;
(ve) the General Administrative Agent Borrowers shall have received evidence reasonably satisfactory delivered to it that the U.S. Borrower has given an irrevocable call notice Agent a favorable opinion of Xxxxxx Xxxxxxxxx LLP, counsel to redeem all 2009 Notes outstanding on the First Amendment Borrowers and the Guarantors dated as of the Effective Date Date, addressed to the Agent and has taken the Lenders and covering such other steps matters in connection with the redemption of the 2009 Notes foregoing as the General Administrative Agent or the Lenders may reasonably requirerequest, in a form and substance reasonably satisfactory to the Agent and its counsel;
(f) the Borrowers shall have delivered to the Agent new duly completed and executed Revolving Credit Notes dated as the Effective Date for each Lender who has increased its Commitment pursuant to this Amendment, and in each case payable to the order of such Lender; and
(vig) the General Administrative Agent Borrowers shall have received evidence delivered to the Agent such other documents, instruments and agreements as the Agent may reasonably request in connection with the purposes of this Amendment, including, without limitation, an amendment to the Security Agreement (Personal Property) entered into by the Borrowers on the November 30, 2004, pursuant to which the Fox PP&E will be temporarily excluded from the Collateral to conform with the amendments set forth in this Amendment, all in form and substance reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Agent and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000its counsel.
Appears in 1 contract
Samples: Credit Agreement (Neenah Paper Inc)
Conditions to Effectiveness of Amendment. This The Bank’s willingness to agree to the amendments set forth in this Amendment shall become effective on is subject to the date (the “First Amendment Effective Date”) on which all prior satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(i) 1. Execution by all parties and delivery to the General Administrative Agent shall have received a counterpart Bank of this Amendment, executed the Consent of Guarantor, and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;Restated Note.
(ii) the General Administrative Agent 2. The Bank shall have received an the following: (a) a certificate of Borrower and Guarantor, dated as of the date hereof and executed Acknowledgment by its respective secretary which shall (i) certify resolutions authorizing the execution, delivery and Consent, in the form set forth at the end performance of this Amendment, from the Restated Note, the Consent of Guarantor, as applicable, (ii) identify by name and title and bear the signature of each Loan Party signatory thereto;
officer of Borrower and Guarantor authorized to sign the foregoing, and (iii) certify to the General Administrative Agent shall have received current Organizational Documents of Borrower and Guarantor attached to such certificate, (b) a good standing certificate for Borrower and Guarantor from its jurisdiction of formation. MEDPACE INTERMEDIATECO, INC., a Delaware corporation (the “Guarantor”) consents to the provisions of the foregoing Amendment No. 4 to Loan Documents (the “Amendment”) and all prior amendments (if any) and confirms and agrees that: (a) for distribution to each Term Lender which has delivered an executed counterpart the Guarantor’s obligations under its Guaranty Agreement dated as of this Amendment September 30, 2019 (the “Guaranty”), relating to the General Administrative Agent on or prior to Obligations referenced in the First Amendment Effective DateAmendment, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined shall be unimpaired by the General Administrative Agent in its sole discretion) and Amendment; (b) all other fees and amounts due and payable on the Guarantor has no defenses, set offs, counterclaims, discounts or prior charges of any kind against the Bank, its officers, directors, employees, agents or attorneys with respect to the First Amendment Effective Date Guaranty; and (c) all of the terms, conditions and covenants in the Guaranty remain unaltered and in full force and effect and are hereby ratified and confirmed and apply to the Obligations, as modified by the Amendment. The Guarantor certifies that all representations and warranties made in the Guaranty are true and correct. The Guarantor hereby confirms that any collateral for which invoices have been presentedthe Obligations, including liens, security interests, mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue unimpaired and in full force and effect, shall cover and secure all reasonable out-of-pocket expenses (including reasonable feesof the Guarantor’s existing and future Obligations to the Bank, charges as modified by this Amendment. By signing below, the Guarantor agrees that this Consent, the Guaranty, the other Loan Documents, any amendments thereto and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
information, notice, signature card, agreement or authorization related thereto (iveach, a “Communication”) may, at the General Administrative Agent shall have received Bank’s option, be in the form of an electronic record. Any Communication may, at the Bank’s option, be signed or executed using electronic signatures. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Bank of a manually signed paper Communication which has been converted into electronic form (such certificates of resolutions or other actionas scanned into PDF format) for transmission, incumbency certificates delivery and/or other certificates of Responsible Officers of each Loan Party as retention. The Guarantor acknowledges and agrees that the General Administrative Agent may reasonably require evidencing methods for delivering Communications, including notices, under the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Guaranty and the other Loan Documents include electronic transmittal to which such Loan Party is a any electronic address provided by any party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant other party from time to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000time.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of the terms of this Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all be subject to satisfaction of the following conditions precedent have been satisfied or waived:(the date upon which this Amendment becomes effective, the “Amendment No. 3 Effective Date”):
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, duly executed and delivered by a duly authorized officer of each of the U.S. Top Borrower, the other BorrowersCo-Borrower, Xxxxxxxx Travel Canada, Inc., an Alberta corporation (the “Canadian Parent Guarantor” and, together with the Co-Borrower, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by Subject Canadian Loan Parties”), each other Loan Party, the Administrative Agent, the Swing Line Lender, each L/C Issuer, each Revolver Increase Lender, each Revolving Lender and the other Lenders party hereto;
(iib) the General Administrative Agent Borrowers shall have received an executed Acknowledgment (i) paid, or caused to have been paid, to the Lead Arranger, all fees and Consent, other amounts due and payable in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of connection with this Amendment to the General Administrative Agent on or prior to the First date hereof, (ii) paid, or caused to have been paid, to the Administrative Agent, for the account of each Revolver Increase Lender, upfront fees in an amount equal to 0.30% of the aggregate principal amount of the 2023 Increased Revolving Commitments provided by the Revolver Increase Lenders on the Amendment No. 3 Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it fees being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersin all respects fully earned, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or the Amendment No. 3 Effective Date and non-refundable and non-credible thereafter and (iii) to the extent invoiced at least three Business Days prior to the First Amendment No. 3 Effective Date (or such shorter period as the Top Borrower may reasonably agree), paid or reimbursed the Administrative Agent for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counselXxxxxx Xxxxxx & Xxxxxxx LLP, New York counsel to the Administrative Agent, and Xxxxxx Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel to the Administrative Agent) required to be paid or reimbursed or paid by any Loan Party hereunder or under any other Loan Documentpursuant to Section 10.04 of the Credit Agreement;
(ivc) the General representations and warranties contained in Section 6, shall be true and correct in all material respects on and as of the Amendment No. 3 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, except that any such representation or warranty qualified by materiality or as to Material Adverse Effect shall be true and correct in all respects as so qualified;
(d) immediately prior to and after giving effect to this Amendment and the transactions contemplated hereby, no Event of Default shall have occurred and be continuing;
(e) the Administrative Agent shall have received a certificate, dated the Amendment No. 3 Effective Date and signed by a Responsible Officer of the Top Borrower, certifying as to the representations and warranties in Section 6(b) and (c);
(f) the Administrative Agent shall have received an amendment or joinder to the Guaranty joining (i) the Co-Borrower as a Guarantor of the Guaranteed Obligations (as defined in the Guaranty), other than the Revolving Loan Obligations and (ii) the Canadian Parent Guarantor as a Guarantor of the Guaranteed Obligations;
(g) the Administrative Agent shall have received lien search results covering the Subject Canadian Loan Parties, dated a date reasonably near to the Amendment No. 3 Effective Date;
(h) the Administrative Agent shall have received a notice of voluntary prepayment of the Initial Term Loans in an aggregate principal amount of $70,000,000 in accordance with Section 2.05(a) of the Credit Agreement (it being understood that each Initial Term Lender party hereto hereby waives the requirement to provide advance notice of such prepayment pursuant to Section 2.05(a) of the Credit Agreement);
(i) the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Amendment, the Amended Credit Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vj) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date such documents and has taken such other steps in connection with the redemption of the 2009 Notes certifications as the General Administrative Agent may reasonably require; andrequire to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where such Person is qualified to do business;
(vik) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount favorable opinions of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect i) Xxxxxx & Xxxxxxx LLP, corporate counsel to the minimum Revolving Credit Commitment Reduction of 33.33% Loan Parties, and any simultaneous addition of any new U.S. Revolving (ii) Xxxxx, Xxxxxxx & Xxxxxxx LLP, as Canadian counsel to the Loan Parties, in each case, addressed to the Administrative Agent; and
(l) the Top Borrower and the Co-Borrower shall have provided or caused to be provided the documentation and other information to the Lenders pursuant that are reasonably required by the applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, in each case, at least three Business Days prior to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Amendment No. 3 Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Viad Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution from each Existing Term Loan Lender with a Tranche B-1 Term Loan Commitment and from Additional Tranche B-1 Term Loan Lenders having Additional Tranche B-1 Term Loan Commitments equal in principal amount to the amount of Existing Term Loans held by Non-Consenting Existing Term Loan Lenders and Post-Closing Option Lenders, (ii) from the Administrative Agent, (iii) from the Required Lenders and (iv) from the Borrowers and each Term Lender which has delivered an executed Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrowers shall have paid to all Existing Term Loan Lenders on or prior to the First Amendment No. 1 Effective Date, an amendment fee equal to 1.00% simultaneously with the making of such Term Lender’s outstanding Tranche B-1 Term Loans under the Credit Agreement, all accrued and unpaid interest on the First Existing Term Loans to, but not including, the Amendment No. 1 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel to the Borrowers. The Borrowers, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(d) The Borrowers shall have paid (i) the Agents the fees in the amounts previously agreed in writing to be received on the Amendment No. 1 Effective Date and (it being agreed that ii) the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counselXxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Agents) required of the Administrative Agent for which invoices have been presented prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe Amendment No. 1 Effective Date;
(ive) At the General time of and immediately after giving effect to the Amendment no Default or Event of Default shall have occurred and be continuing;
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrowers and the applicable Credit Party relating thereto) and, if any such certificates Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the Flood Insurance Laws, evidence of flood insurance to the extent required pursuant to the Credit Agreement all by the Amendment No. 1 Effective Date; and
(g) The Administrative Agent (or its counsel) shall have received (i) (A) a certificate of each of Holdings and the Borrowers, dated the Amendment No. 1 Effective Date, substantially in the form of Exhibit G to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer (or in the case of Holdings any Director or authorized agent of Holdings) and the Secretary or any Assistant Secretary of Holdings or the Borrowers (or in the case of Holdings any Director or authorized agent of Holdings), as applicable, and attaching the documents referred to in the following clause (B) and (B) (x) a copy of the resolutions of the board of directors or other actionmanagers of Holdings and the Borrowers (or a duly authorized committee thereof) authorizing (I) the execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and (II) in the case of the Borrowers, the extensions of credit contemplated hereunder, (y) the Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of Holdings and the Borrowers and (z) signature and incumbency certificates and/or (or other certificates comparable documents evidencing the same) of Responsible the Authorized Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Holdings and the other Loan Borrowers executing the Credit Documents to which such Loan Party it is a party or is to be (ii) a party;
(v) certificate of Holdings on behalf of each Borrower, dated the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment No. 1 Effective Date and has taken such other steps in connection with executed by an Authorized Officer of Holdings, certifying that, except as otherwise indicated therein, there have been no amendments, supplements or modifications since the redemption Closing Date to the documents delivered on the Closing Date pursuant to Sections 6.3 and 6.4 of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 1 contract
Samples: Credit Agreement (GoDaddy Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(a) The Administrative Agent shall have received (i) from each Lender with a Tranche B-1 Exchange Commitment and from each Post-Closing Option Lender, (ii) from the General Administrative Agent and (iii) from the Borrower and each Subsidiary Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (or a Consent) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment (or a Consent).
(b) The Administrative Agent shall have received from each Additional Tranche B-1 Lender an executed counterpart to the applicable Joinder Agreement. The aggregate amount of Additional Tranche B-1 Commitments and Tranche B-1 Exchange Commitments shall equal the aggregate principal amount of Tranche B Loans outstanding immediately prior to the effectiveness of this Amendment.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Lender immediately prior to the effectiveness of this Amendment, a payment equal to 1% of the aggregate principal amount of Loans outstanding immediately prior to the Amendment No. 1 Effective Date, whether or not such Lender becomes a Tranche B-1 Lender.
(d) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Lender immediately prior to the effectiveness of this Amendment, simultaneously with the making of Tranche B-1 Loans under the Term Loan Agreement, all accrued and unpaid interest on their Tranche B Loans to, but not including, the Amendment No. 1 Effective Date.
(e) The Administrative Agent shall have received a counterpart of this Amendment, executed customary written opinion (addressed to the Administrative Agent and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders dated the Amendment No. 1 Effective Date) of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, New York counsel for the Credit Parties, in form and substance reasonably satisfactory to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;. The Borrower hereby requests such counsel to deliver such opinions.
(f) The Borrower shall have paid to (i) the Co-Lead Arrangers the fees in the amounts previously agreed in writing to be received on the Amendment No. 1 Effective Date and (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable documented out-of-pocket costs and expenses of the Administrative Agent (including including, without limitation the reasonable fees, charges and disbursements of counselXxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent) required payable pursuant to be reimbursed or paid by any Section 9.05 of the Term Loan Party hereunder or under any other Loan Document;Agreement for which invoices have been presented at least three Business Days prior to the Amendment No. 1 Effective Date.
(ivg) At the General time of and immediately after giving effect to this Amendment no Default or Event of Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received (1) a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such certificates concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official); (2) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Amendment No. 1 Effective Date and certifying: (i) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Amendment No. 1 Effective Date and at all times since a date prior to the date of the resolutions described in clause (ii) below, (ii) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or other actionmanaging general partner, incumbency certificates and/or other certificates managing member or equivalent) of Responsible Officers such Credit Party authorizing the execution, delivery and performance of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party Person is a party and the borrowings hereunder, and that such resolutions have not been modified, rescinded or is amended and are in full force and effect on the Amendment No. 1 Effective Date, (iii) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to be a party;
clause (1) above, (iv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Credit Party, and (v) as to the General absence of any pending proceeding for the dissolution or liquidation of such Credit Party; and (3) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (2) above; provided that the certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party may, in lieu of attaching the documents required pursuant clauses (1) and (2)(i) above, certify that such documents have not been amended, modified or otherwise changed since the Funding Date.
(i) To the extent required and requested in writing by any Additional Tranche B-1 Lender at least three Business Days prior to the Amendment No. 1 Effective Date, the Administrative Agent shall have received evidence reasonably satisfactory to it that all documentation and other information about the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Credit Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andUSA PATRIOT Act.
(vij) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Authorized Officer of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect Borrower certifying as to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 accuracy of the Existing Credit Agreementrepresentations set forth in paragraphs (b) will be not less than $700,000,000and (c) of Section 2 hereof.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all Acceptance of the foregoing amendments by the Agent on behalf of the Banks shall be subject, without limitation, to the following conditions precedent have been satisfied or waivedconditions:
(ia) the General Administrative The Agent shall have received a counterpart all Eligible Real Estate Qualification Documents with respect to the multifamily apartment projects known as Benchmark Apartments located in Irving, Texas ("Benchmark Apartments") and The Providence Apartments formerly known as Newport Commons located in Dallas, Texas ("Providence Apartments").
(b) Each of the Banks shall have received the opinion of Xxxxx X. Xxxxxxxxx, General Counsel to the Borrower, with respect to this Amendment, executed the Security Documents for Benchmark Apartments and Providence Apartments as contemplated by subparagraph (a) of this Section 4 and other documents required to be delivered in connection with this Amendment.
(c) Each of the Banks shall have received the opinion of Xxxxxxx & Xxxxxx LLP with respect to the Security Documents for Benchmark Apartments and Providence Apartments as contemplated by subparagraph (a) of this Section 4.
(d) Each of the Banks shall have received a Compliance Certificate dated as of the date hereof demonstrating compliance with each of the covenants calculated therein as of June 30, 1996.
(e) All proceedings in connection with the transactions contemplated by this Amendment shall be reasonably satisfactory in form and substance to the Majority Banks and the Agent's Special Counsel, and the Agent shall have received all information and such counterpart originals or certified copies of such documents and such other certificates, opinions or documents as the Majority Banks and the Agent's Special Counsel may reasonably require.
(f) All action on the part of the REIT, the Borrower and each Subsidiary and Nominee necessary for the valid execution, delivery and performance by each of the REIT, the Borrower and such Subsidiary and Nominee of this Amendment No. 4 and the other Loan Documents to which it is or is to become a party shall have been duly and effectively taken, and evidence thereof satisfactory to the Agent shall have been provided to each of the Banks. Each of the Banks shall have received from each of the REIT, the Borrower and each applicable Subsidiary and Nominee true copies of its by-laws and the resolutions adopted by its shareholders and board of directors, partners, beneficiaries and trustees, as the case may be, authorizing the transactions described herein, each certified by its clerk, secretary, trustee or authorized partner as of a recent date to be true and complete.
(g) Each of the Banks shall have received from the REIT, the Borrower and each applicable Subsidiary and Nominee an incumbency certificate, dated as of the effective date of this Amendment No. 4, signed by a duly authorized officer of the U.S. BorrowerREIT or officer, trustee or partner of each applicable Subsidiary and Nominee and giving the other Borrowers, the Majority Lenders name and Extending Lenders bearing a specimen signature of each individual who shall be authorized: (a) to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consentsign, in the form set forth at name and on behalf of the end REIT, the Borrower and each such Subsidiary and Nominee, each of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which the REIT, the Borrower or such Loan Party Subsidiary or Nominee is a party or is to be become a party;
; (vb) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice make Loan and Conversion Requests; and (c) to redeem all 2009 Notes outstanding give notices and to take other action on the First Amendment Effective Date and has taken such other steps in connection with the redemption behalf of the 2009 Notes as REIT or the General Administrative Agent may reasonably require; and
(vi) Borrower under the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Loan Documents.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when and only when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority LendersLenders and the following conditions precedent have been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) The Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance satisfactory to the Agent and in such number of counterparts as determined may be requested by the General Agent: [FOURTH AMENDMENT TO EIGHTH AMENDED AND RESTATED CREDIT AGREEMENT]
(i) counterparts of the Amendment Documents executed by the applicable Loan Parties sufficient in number for distribution to the Administrative Agent in its sole discretionand the Borrower.
(ii) and (b) all other fees and amounts due and payable a certificate on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements behalf of counsel) required to be reimbursed or paid by any each applicable Loan Party hereunder or under any (other Loan Document;
(ivthan Appalachia and Louisiana) certifying that none of the General Administrative Agent shall have received such certificates of resolutions or other actionresolutions, incumbency certificates certificates, Organization Documents and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party have been amended or is are otherwise inaccurate since they were delivered and certifying resolutions authorizing this Amendment.
(iii) a certificate of each of Appalachia and Louisiana, dated the Effective Date, substantially in the form of Exhibit C to be the Original Agreement, with appropriate insertions and attachments and evidencing, among other things, the power and authority of each such Person to assume the Obligations under the Credit Agreement as a party;borrower.
(iv) an amended and restated Guarantee Agreement, in form and substance satisfactory to the Agent, executed and delivered by the Company, the Borrower and each Subsidiary Guarantor.
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption replacement promissory notes of the 2009 Notes Borrower evidencing the Revolving Loans of each Lender, substantially in the form of Exhibit H to the Original Agreement, with appropriate insertions as the General Administrative Agent may reasonably require; andto date and principal amount.
(vi) such other documents or certificates as the General Administrative Agent shall reasonably request.
(b) Any fees required to be paid to the Agent or any Lender on or before the Effective Date shall have received evidence reasonably satisfactory been paid.
(c) Unless waived by the Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to it that the aggregate principal amount of Agent to the Tranche A U.S. Revolving Credit Commitments extent invoiced prior to or on the First Amendment Effective Date Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (after giving effect to provided that such estimate shall not thereafter preclude a final settling of accounts between the minimum Revolving Credit Commitment Reduction of 33.33% Borrower and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.Agent). [FOURTH AMENDMENT TO EIGHTH AMENDED AND RESTATED CREDIT AGREEMENT]
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on and the date (obligation of the “First Amendment Effective Date”) on which all Banks to make Revolving Credit Loans under their increased Commitments is subject to the satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(A) Replacement Revolving Credit Notes in the principal amount of the increased Commitments shall have been delivered to the Banks;
(B) The representations and warranties of the Borrower contained in Article 5 of the Credit Agreement shall be true as though such representations and warranties had been made today, except (i) for representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall continue to be true as of the General Administrative Agent specific dates or times referred to therein and (ii) as indicated on the updated Credit Agreement disclosure schedules attached hereto;
(C) The Borrower shall have received performed and complied with all covenants and conditions of the Credit Agreement as amended hereby;
(D) No Event of Default or Potential Default shall have occurred and be continuing or shall exist;
(E) No Material Adverse Change in the Borrower or any of its Subsidiaries shall have occurred since the date of the Borrower's financial statements most recently reviewed by the Banks;
(F) The Borrower shall have delivered to the Agent for the benefit of each Bank a counterpart certificate of the Secretary or Assistant Secretary of the Borrower, certifying as to (i) all action taken by the Borrower in connection with this Amendment, executed the replacement Revolving Credit Notes, and delivered by a duly authorized officer of the U.S. Borrowerany related Loan Documents (collectively, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below"Amendment Documents"); provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in names of the form set forth at the end of officer or officers authorized to sign this Amendment, from each the replacement Revolving Credit Notes, and the related Loan Party signatory thereto;
Documents; and (iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart absence of this Amendment to any changes in the General Administrative Agent certificate of incorporation and bylaws of the Borrower as they were in effect on or prior to March 31, 1997, the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on Closing Date under the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentCredit Agreement;
(ivG) the General Administrative Agent The Borrower shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers delivered to the Agent for the benefit of each Loan Party Bank a written opinion of Xxxxxxx X. Xxxxxxxxxxx, general counsel to the Borrower, as to the corporate existence and good standing of the Borrower; the due authorization, execution, delivery and enforceability of the Amendment Documents; the absence of conflicts between the Amendment Documents and the organizational documents of the Borrower, applicable laws, and other debt obligations of the Borrower; the absence of material litigation or claims against the Borrower; and such other matters as the General Administrative Agent may reasonably require evidencing request;
(H) The Borrower shall have delivered to the identityAgent satisfactory evidence that the "Majority Holders" under the Alco Note have consented to the increase in the amount of "Superior Debt" permitted under the Alco Note to $125,000,000, authority plus interest; and
(I) The Borrower shall have paid to the Agent, for itself and capacity for the account of each Responsible Officer thereof authorized to act as a Responsible Officer the Banks, all commitment and other fees due in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waivedupon receipt by:
(ia) the General Administrative Agent shall have received Lender of a counterpart of signature to this Amendment, Amendment duly executed and delivered by a duly authorized officer the Borrower and each of the U.S. other Credit Obligors,
(b) the Lender of the amended and restated Note duly executed and delivered by an Authorized Officer of the Borrower, ,
(c) the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent Credit Obligors of a counterpart signature to this Amendment by instead executing a “lender addendum” in a form as provided duly executed and delivered by the Administrative Agent;Lender,
(iid) the General Administrative Agent shall have received an Lender of a Secretary’s Certificate with respect to each U.S. Obligor, in substantially the form delivered on the Closing Date, duly executed Acknowledgment and Consentdelivered by the signatories thereto and a verification certificate for each of Unilife Medical Solutions Pty Limited and Unitract Syringe Pty Ltd in substantially the form delivered on the Closing Date, in each case attaching resolutions of each such Person’s Board of Directors (or other managing body, in the form set forth at case of other than a corporation) then in full force and effect authorizing the end of this Amendmentexecution, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart delivery and performance of this Amendment and the amended and restated Note delivered in connection herewith to be executed by such Person and the transactions contemplated hereby and thereby,
(e) the Lender from each U.S. Obligor, a copy of a good standing certificate, dated a date reasonably close to the General Administrative Agent on or prior date hereof from its jurisdiction of formation, for each such Person,
(f) the Lender of an opinion of counsel to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on Borrower and the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment other Credit Obligors in form and substance reasonably satisfactory to the General Administrative Agent on Lender, and
(g) the Lender or prior to the time that the General Administrative Agent has received executed counterparts its counsel of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) reimbursement for all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid incurred by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Lender in connection with this Amendment and the all other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption like expenses remaining unpaid as of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000date hereof.
Appears in 1 contract
Samples: Credit Agreement (Unilife Corp)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:(such date, the “Thirteenth Amendment Effective Date”):
(a) (i) the General Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Exchanging Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
(b) each of the representations and warranties contained in Section 6 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Thirteenth Amendment Effective Date;
(c) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Thirteenth Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
(d) the Administrative Agent shall have received a counterpart of this Amendmentcertificate, executed in form and delivered substance reasonably acceptable to the Administrative Agent, dated the Thirteenth Amendment Effective Date and signed by a duly authorized officer Responsible Officer of the U.S. Borrower, Borrower Representative and confirming compliance with the other Borrowers, conditions set forth in Sections 5(b) and 5(c) hereof;
(e) the Majority Lenders and Extending Lenders Administrative Agent shall have received a solvency certificate dated as of the Thirteenth Amendment Effective Date in substantially the form of Exhibit H of the Amended Credit Agreement from a Financial Officer of the Parent certifying as to the matters set forth therein;
(f) the Administrative Agent shall have received each Revolving Credit Note (to the extent requested at least three Business Days prior to the Thirteenth Amendment Effective Date);
(g) no later than three (3) days in advance of the Thirteenth Amendment Effective Date, the Administrative Agent shall have received all documentation and other information reasonably requested by it in writing at least 10 days in advance of the Thirteenth Amendment Effective Date, which documentation or other information is required by clause regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(vih) below; provided that any Lender may signify its consent the Administrative Agent shall have received a certificate dated as of the Thirteenth Amendment Effective Date from a Responsible Officer of the Borrower Representative, certifying compliance with Section 6.13 of the Existing Credit Agreement;
(i) the Administrative Agent shall have received, on behalf of itself and the Lenders on the Thirteenth Amendment Effective Date, a customary written opinion of Xxxxxxxx & Xxxxx LLP, special counsel for Parent, the Borrowers and each other Loan Party (A) dated the Thirteenth Amendment Effective Date, (B) addressed to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent, the Amendment Arranger and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and the Amendment Arranger covering such matters relating to this Amendment;
(j) the Bookrunner and Mandated Lead Arranger shall have received all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Bookrunner and Mandated Lead Arranger, for which invoices have been presented to the Parent at least three Business Days prior to the Thirteenth Amendment Effective Date, on or before the Thirteenth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
(k) the Administrative Agent shall have received:
(i) all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Administrative Agent, for which invoices have been presented to the Parent at least three (3) Business Days prior to the Thirteenth Amendment Effective Date, on or before the Thirteenth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
(ii) for distribution to each Existing Revolving Lender, an amount equal to the General Administrative Agent shall have received an executed Acknowledgment sum of (x) the principal of and Consent, unpaid interest accrued to the Thirteenth Amendment Effective Date on the outstanding Revolving Loans of such Existing Revolving Lender and (y) all fees and other amounts owing to or accrued for the account of such Existing Revolving Lender under the Existing Credit Agreement in respect of such Revolving Loans and such Existing Revolving Lender’s Revolving Credit Commitments (including any amounts under Section 3.06 of the form set forth at the end of this Amendment, from each Loan Party signatory theretoExisting Credit Agreement);
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Incremental Revolving Lender which has that shall have delivered (by facsimile or otherwise) an executed counterpart of this Amendment signature page to the General Administrative Agent a Revolving Lender Consent or a Revolving Credit Facility Joinder (as applicable), and released such signature page, on or prior to the First Amendment Effective Date12:00 p.m. (New York time) on October 6, 2023, a non-refundable special new money fee in an amendment fee amount equal to 1.00(i) 0.70% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined multiplied by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (held by such Incremental Revolving Lender immediately after giving effect to the minimum transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Bookrunner and Mandated Lead Arranger; (ii) 0.60% multiplied by the principal amount of the Revolving Credit Commitment Reduction of 33.33Commitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Mandated Lead Arranger; (iii) 0.50% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 multiplied by the principal amount of the Existing Revolving Credit AgreementCommitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Lead Arranger and (iv) will be not less than $700,000,0000.40% multiplied by the principal amount of the Revolving Credit Commitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is an Arranger.
Appears in 1 contract
Samples: Credit Agreement (Orion S.A.)
Conditions to Effectiveness of Amendment. This Amendment The Amendments contained in Section 3 of this Agreement and the extension of the Revolving Facility Commitments to Extended Maturity Revolving Facility Commitments contained in Section 4 shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been are satisfied or waived:
(ia) The Consent Deadline shall have occurred.
(b) The Borrower shall have paid, to the General account of each Extending Lender (other than a Defaulting Lender) as of the Amendment Effective Date, a fee equal to 25 basis points on the aggregate amount of Revolving Facility Commitments held by such Extending Lender on the Amendment Effective Date that are converted to Extended Maturity Revolving Facility Commitments hereunder.
(c) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent all fees payable thereto on or prior to the First Amendment Effective Date and, to the extent invoiced at least three Business Days prior to the Amendment Effective Date, an amendment fee equal to 1.00% reimbursement or payment of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of counselXxxx Xxxxxxxx LLP) required to be reimbursed or paid by any the Loan Party hereunder Parties in connection with this Agreement on or under any other Loan Document;prior to the Amendment Effective Date.
(ivd) The Administrative Agent shall have received, on behalf of itself and the General Revolving Facility Lenders, a written opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, as special counsel to the Loan Parties, (A) dated the date of the Amendment Effective Date, (B) addressed to the Administrative Agent and the Revolving Facility Lenders at 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.
(e) The Revolving Facility Lenders shall have received a solvency certificate substantially in the form of Exhibit C to the Credit Agreement and signed by a Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the transactions contemplated by this Agreement.
(f) The Administrative Agent shall have received such certificates a certificate of resolutions the Secretary or other action, incumbency certificates and/or other certificates of Responsible Officers Assistant Secretary or similar officer of each Loan Party dated the date of the Amendment Effective Date:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the General Administrative Agent may reasonably require evidencing Secretary of State (or other similar official) of the identityjurisdiction of its organization or (y) certifying there have been no changes to the certificate or articles of incorporation, authority certificate of limited partnership, certificate of formation or other equivalent constituent documents of such Loan Party since the Closing Date or the date such Loan Party became a Subsidiary Guarantor, as applicable,
(ii) attaching a “bring-down” certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary State (or similar official),
(iii) either (x) certifying that attached thereto is a true and capacity complete copy of each Responsible Officer thereof authorized the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect at the Amendment Effective Date and at all times since a date prior to act the date of the resolutions described in clause (iv) below or (y) certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party since the Closing Date or the date such Loan Party became a Subsidiary Guarantor, as applicable,
(iv) certifying that attached thereto is a Responsible Officer true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Amendment and the other Loan Documents Agreement to which such Loan Party is a party and that such resolutions have not been modified, rescinded or is to be a party;amended and are in full force and effect at the Amendment Effective Date,
(v) either (x) certifying as to the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date incumbency and has taken such other steps specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party or (y) certifying there have been no changes to the redemption incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the 2009 Notes Closing Date or the date such Loan Party became a Subsidiary Guarantor, as the General Administrative Agent may reasonably require; applicable, and
(vi) certifying as to the General Administrative Agent shall have received evidence reasonably satisfactory absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to it the knowledge of such person, threatening the existence of such Loan Party. Notwithstanding anything to the contrary herein, in the event that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (does not occur on or before the date that is 10 Business Days after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000date hereof, then this Agreement shall automatically terminate without further action or notice.
Appears in 1 contract
Samples: Incremental Assumption Agreement (Cec Entertainment Inc)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject to the date satisfaction (the “First Amendment Effective Date”or waiver) on which all of the following conditions precedent have been (the date on which all such conditions precedent are satisfied (or waived), the “Amendment Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or electronic images in a portable document format (e.g., “.pdf” or “.tif”) (followed promptly by originals) unless otherwise specified:
(i) counterparts to this Amendment executed by the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Guarantors, each of the Increasing Lenders, Lenders comprising Required Lenders, and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) such Revolving Credit Notes and/or Incremental Term Notes as may be requested by any of the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory theretoIncreasing Lenders;
(iii) the General Administrative Agent shall have received (a) appropriate Requests for distribution to each Term Lender which has delivered an executed counterpart of this Amendment Credit Extension with respect to the General Administrative Agent on or prior to the First Amendment Effective DateIncremental Term Loan, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only and if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersapplicable, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentRevolving Credit Loans;
(iv) a favorable opinion of Sheppard, Mullin, Xxxxxxx & Xxxxxxx, LLP, counsel to the General Loan Parties, addressed to the Administrative Agent shall have received such certificates and each Lender, as to matters concerning the Loan Parties, this Amendment and the other Loan Documents as the Administrative Agent may reasonably request;
(v) a favorable opinion of resolutions or local counsel to the Loan Parties in England, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties, this Amendment and the other actionLoan Documents as the Administrative Agent may reasonably request;
(vi) an officer’s certificate of each Loan Party, incumbency certificates and/or other certificates of Responsible Officers dated the Amendment Effective Date, certifying as to the organizational documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the General Administrative Agent may reasonably require resolutions of the governing body of each Loan Party and the good standing, existence or its equivalent of each Loan Party and attaching an incumbency certificate for each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a partyparty (including specimen signatures);
(vvii) such other assurances, certificates, documents, filings, information, consents or opinions as the General Administrative Agent, the L/C Issuer, the Swingline Lender or the Lenders reasonably may require.
(b) Upon the reasonable request of any Lender made prior to the Amendment Effective Date, the Loan Parties shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, and any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have provided, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(c) The Loan Parties shall have paid (i) to the Administrative Agent, for the account of each of the Increasing Lenders who enter into commitments to provide a portion of the Additional Credit Facilities prior to the Amendment Effective Date (including, if applicable, Bank of America), the fees due and payable under the Fee Letter dated as of the date hereof between the Administrative Agent and the Domestic Borrower; and (ii) all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) prior to or on the Amendment Effective Date (or on such other date as may be agreed by such counsel). Without limiting the generality of the provisions of Section 11.01 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 6, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received evidence reasonably satisfactory notice from such Lender prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Diodes Inc /Del/)
Conditions to Effectiveness of Amendment. This The effectiveness of the amendments and consents pursuant to this Amendment shall become effective on be subject to the date (the “First Amendment Effective Date”) on which all satisfaction of each of the following conditions precedent precedent:
(a) Lender shall have received an executed original or executed original counterparts of this Amendment (as the case may be), duly authorized, executed and delivered by the respective party or parties hereto;
(b) Lender shall have received, in form and substance satisfactory to Lender, evidence that the QMP Purchase Agreements and the OMPC-NC Merger Agreements have been satisfied duly authorized, executed and delivered by and to the appropriate parties thereto, that the transactions contemplated under the terms and conditions of the QMP Purchase Agreements have been consummated prior to or waivedcontemporaneously with the execution of this Amendment;
(c) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by BBT of its financing arrangements with ORC, as assumed by ORC pursuant to the QMP Purchase Agreements, and the termination and release by BBT of any interest in and to any assets and properties of QMP constituting any of the QMP Purchased Assets, and of any interest in the assets and properties of ORC, duly authorized, executed and delivered by BBT, including, but not limited to, (i) UCC-3 Termination Statements for all UCC Financing Statements previously filed by it, as secured party, and QMP, as debtor, and (ii) satisfactions and discharges of any mortgages, deeds or trusts or deeds to secured debt by QMP in favor of it covering any of the Real Property located in Chatham County, North Carolina, in form acceptable for recording in the appropriate governmental office located in Chatham County, North Carolina;
(d) Lender shall have received evidence, in form and substance satisfactory to Lender, that the OMPC-NC Merger will be consummated by the close of business on the date hereof.
(e) Lender shall have received, in form and substance satisfactory to Lender, the Second Amended and Restated ORC Term Note, duly authorized, executed and delivered by ORC;
(f) Lender shall have received, in form and substance satisfactory to Lender, each duly authorized, executed and delivered (i) a Deed of Trust and Security Agreement by ORC in favor of Xxxxxxx X. Xxxxxx, as trustee, for the benefit of Lender with respect to the Real Property and related assets of ORC acquired from QMP located in Chatham County, North Carolina, (ii) a Mortgage Modification Agreement with respect to the Mortgage and Security Agreement, dated February 2, 1996, by ORC in favor of Lender for filing in Tippecanoe County, Indiana, and (iii) a Mortgage Modification Agreement with respect to the Amended and Restated Mortgage and Security Agreement, dated February 2, 1996, by ORC in favor of Lender for filing in Madison County, New York and Oswego County, New York;
(g) Lender shall have received an environmental Phase I and Phase II site report with respect to ORC's Real Property to be acquired from QMP and located in Chatham County, North Carolina, conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) that the past and present operation, use and condition of such Real Property has been in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(h) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy and/or updating endorsements issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(i) Lender shall have received, in form and substance, satisfactory to Lender, originals of the following, each duly authorized, executed and delivered:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered Supplemental Limited Guarantee by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Xxxxxxx Xxxxxxx with respect to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentObligations of ORC;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory theretoReunion Limited Guarantee;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;Reunion Indemnity Agreement; and
(iv) the General Administrative Reunion/ORC Letter; and
(v) a Subordinated Promissory Note, dated of even date herewith, by ORC payable to Reunion in the original principal amount of $2,000,000 evidencing the indebtedness consisting of the Reunion November 1996 Subordinated Loan.
(j) Lender shall have received, in form and substance satisfactory to Lender, (i) a letter agreement from Reunion in favor of Lender acknowledging that each of the Reunion November 1996 Subordinated Loan and the Reunion February 1997 Subordinated Loan (when and if made) shall be subordinated in right of payment to the right of Lender to receive the prior indefeasible payment in full of all of the Obligations pursuant to the Subordination Agreement, dated February 2, 1996, between Lender and Reunion, as acknowledged by Borrowers, duly authorized, executed and delivered by Reunion and Borrowers and (ii) a letter agreement from Xxxxxxx Xxxxxxx in favor of Lender acknowledging that the indebtedness consisting of the Supplemental Credit Support Fee Agreement, dated of even date herewith, between ORC and Xxxxxxx Xxxxxxx shall be subordinated in right of payment to the right of Lender to receive the prior indefensible payment in full of all of the Obligations pursuant to the Subordination Agreement, dated February 2, 1996, between Lender and Xxxxxxx Xxxxxxx, as acknowledged by ORC, duly authorized, executed and delivered by Xxxxxxx Xxxxxxx and ORC;
(k) Lender shall have received, in form and substance satisfactory to Lender, (i) a favorable opinion of counsel for ORC addressed to Lender with respect to the transactions contemplated by this Amendment, the QMP Purchase Agreements and the OMPC-NC Merger Agreements, (ii) a favorable opinion of special North Carolina counsel for ORC addressed to Lender with respect to the transactions contemplated by this Amendment, the QMP Purchase Agreements and the OMPC-NC Merger Agreements, and (iii) a favorable opinion of counsel for QMP and Xxxx addressed to ORC, upon which Lender is expressly permitted to rely, with respect to the transactions contemplated by the QMP Purchase Agreements;
(l) Lender shall have received, in form and substance satisfactory to Lender, (i) a Collateral Assignment of Acquisition Agreements by ORC in favor of Lender, duly authorized, executed and delivered by ORC providing for the assignment of all of ORC's rights and remedies and claims for damages or other relief under the QMP Purchase Agreements and granting Lender such other rights with respect thereto, as Lender may require, and (ii) the agreement of QMP, Xxxx and the Escrow Agent (as defined in the Purchase Agreements) consenting to the Collateral Assignment of Acquisition Agreements by ORC to Lender duly authorized, executed and delivered by QMP, Xxxx and the Escrow Agent;
(m) Lender shall have received, in form and substance satisfactory to Lender, evidence that Lender has valid, perfected and first priority security interests in and liens upon the QMP Purchased Assets;
(n) Lender shall have received, in form and substance satisfactory to Lender, updates or amendments to the insurance certificates previously issued by the insurance agent and/or insurance company in favor of Lender certifying to Lender that the QMP Purchased Assets, including the Real Property located in Chatham County, North Carolina, are covered by ORC's existing insurance policies and loss payable and additional insured endorsements in favor of Lender;
(o) Lender shall have received, in form and substance satisfactory to Lender, UCC-3 Termination Statement by Sunbeam with respect to UCC-1 Financing Statements previously filed against QMP and new UCC-1 Financing Statements between ORC, as debtor, and Sunbeam, as secured party, filed with the North Carolina Secretary of State and the Recorder of Deeds of Chatham County, North Carolina;
(p) Lender shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized evidence that ORC has qualified to act do business as a Responsible Officer foreign corporation in the State of North Carolina;
(q) Lender shall have received evidence that QMP has filed an amendment to its Certificate of Incorporation changing its name to a name bearing no resemblance to Quality Molded Products, Inc.;
(r) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests and liens upon the Collateral or to affect the provisions or purposes of this Amendment and the other Financing Agreements;
(s) no material adverse change shall have occurred in the QMP Purchased Assets or the business of QMP conducted with the QMP Purchased Assets by QMP since the date of Lender's latest field examination of the QMP Purchased Assets.
(t) all requisite corporate action and proceedings in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is documents and instruments to be a partydelivered hereunder shall be in form and substance satisfactory to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(u) no Event of Default shall exist or have occurred and no event or condition shall have occurred or exist which with notice or passage of time or both would constitute an Event of Default;
(v) the General Administrative Agent Lender shall have received evidence reasonably received, in form and substance satisfactory to it that Lender, an agreement from Xxxxx Limited and Gain Technologies providing for, among other things, the U.S. Borrower has given an irrevocable call notice rights of ORC and Lender with respect to redeem all 2009 Notes outstanding on the First Amendment Effective Date intellectual property licensed to ORC by Gain Technologies and/or Xxxxx Limited and has taken Collateral consisting of or affected by such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requirerights; and
(viw) the General Administrative Agent Lender shall have received evidence reasonably received, in form and substance satisfactory to it that the aggregate principal amount Lender, evidence of the Tranche A U.S. Revolving Credit Commitments payment by ORC of the QMP Purchase Price (subject to adjustment as provided in the QMP Purchase Agreements) in consideration of the purchase by ORC of the QMP Purchase Assets pursuant to the QMP Purchase Agreements and the payment by ORC of an amount not to exceed $240,000 in payment of the broker's fee payable to First Commercial Group upon closing of the acquisition contemplated by the QMP Purchase Agreements, in each case as in effect on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000date hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Reunion Industries Inc)
Conditions to Effectiveness of Amendment. This 3.1 The effectiveness of the amendments set forth in Sections 1 and 2 of this Amendment shall become effective on No. 3 is subject to the date (the “First Amendment Effective Date”) on which all prior or simultaneous fulfillment of the following conditions precedent have been satisfied on or waivedbefore 4:00 P.M. New York City time on April 27, 2000:
(ia) the General Administrative The Agent shall have received a counterpart of this Amendment, Amendment No. 3 executed and delivered by (i) a duly authorized officer or officers of the U.S. BorrowerCompany and (ii) the Required Lenders;
(b) The Agent shall have received such other documents as it shall have reasonably requested consistent with the terms hereof;
(c) Holders of Indebtedness under any Covenant Credit Facility shall have executed, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause each such Covenant Credit Facility, waivers or amendments to such credit facilities satisfactory to the Agent and the Required Lenders (vii) below; provided that any Lender may signify its consent containing amendments to the covenants and related definitions in such credit facilities identical to those set forth in Section 1 of this Amendment No. 3 and (ii) containing agreements by instead executing a “lender addendum” in a form as provided such holders to (A) waive compliance by the Administrative AgentCompany or any of its Subsidiaries with, or amend, any provision of any instrument, document or agreement evidencing such Indebtedness requiring the sharing of any collateral securing the Liquidity Loans and (B) waive any default or event of default currently existing or occurring as a result of (x) the incurrence by the Company of Indebtedness under the Liquidity Loan subfacility, (y) the Guarantee by the Guarantors of the obligations of the Company in respect of the Liquidity Loans or (z) the granting of the liens and security interest to secure the obligations in respect of the Liquidity Loans and the obligations of the Subsidiary Guarantors under the Subsidiary Guarantee;
(iid) the General Administrative The Agent shall have received an executed Acknowledgment payment of all of its out-of-pocket expenses, including the reasonable fees and Consentexpenses of its counsel Xxxxx, Xxxxxx & Xxxxxx, LLP incurred in the form set forth at the end of connection with this Amendment, from each Loan Party signatory theretoAmendment No. 3;
(iiie) The Agent shall have received the General Administrative arrangement fee due to the Agent pursuant to the agreement between the Agent and the Company;
(f) The Agent shall have received confirmation that the attorneys and accountants for the Steering Committee have received retainer payments of $500,000 in the aggregate;
(g) The Agent shall have received (ai) a non-refundable Subfacility fee, for distribution to each Term Lender which has delivered an executed counterpart the pro-rata benefit of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective DateLenders, an amendment fee equal to 1.00% $1,000,000 and (ii) a non-refundable amendment fee, for the pro-rata benefit of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior equal to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document$187,500;
(ivh) the General Administrative The Agent shall have received such certificates for deposit in the Disbursement Account and, if applicable, the Reserve Account the Net Cash Proceeds of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as any Permitted Disposition closed prior to the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment No. 3 Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireDate; and
(vii) The representations and warranties contained in the General Administrative Credit Agreement (other than the representations and warranties made as of a specific date) shall be true and correct in all material respects on and as of the Amendment No. 3 Effective Date, other than such exceptions as set forth on a disclosure certificate to be delivered to the Agent shall have received evidence reasonably satisfactory to it by the Company on or before the Amendment No. 3 Effective Date so long as such exceptions do not disclose the occurrence of a Material Adverse Change since the date of the Projections.
3.2 The date on which the conditions set forth in Section 3.1 are satisfied is the "AMENDMENT NO. 3 EFFECTIVE DATE" and until the conditions set forth in Section 3.1 are satisfied, the amendments set forth in Section 1 and 2 of this Amendment No. 3 are not effective. In the event that the aggregate principal amount conditions set forth in Section 3.1 have not been satisfied on or before 4:00 p.m. New York City time on April 27, 2000, this Amendment No. 3 shall terminate and shall be of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000no force or effect.
Appears in 1 contract
Samples: Credit Agreement (Ogden Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (such date, if any, the “First Fourth Amendment Effective Date”) on which all each of the following conditions precedent have set forth below has been satisfied or waivedsatisfied:
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, the Guarantor Subsidiaries and the Consenting Lenders constituting the Required Lenders, as determined by the General Administrative Agent in its sole discretion) and .
(b) The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) a certificate of an officer of each Credit Party certifying that attached thereto is (A) a true, correct and complete copy of resolutions duly adopted by the board of directors (or other governing body) of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment, (B) an incumbency of the officers or authorized representatives of such Credit Party executing this Amendment and the other Credit Documents and (C) a good standing certificate form the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of such Credit Party; and
(ii) opinions of counsel to the Credit Agreement addressed to the Administrative Agent and the Lenders with respect to this Amendment.
(c) Other than the Specified Events of Default, no Default or Event of Default shall exist on such Fourth Amendment Effective Date immediately prior to or after giving effect to this Amendment.
(d) On or after March 30, 2023, Borrower shall have repaid Twenty Million Dollars ($20,000,000) in principal amount of Revolving Loans (such repayment, the “Fourth Amendment Effective Date Prepayment”).
(e) Administrative Agent shall have received the Fourth Amendment Fee First Installment in full and cash.
(f) The representations and warranties in the Credit Documents will be true and correct in all other fees material respects (except for representations and amounts due warranties that are already qualified by materiality, which representations and payable warranties will be true and correct in all respects) immediately prior to, and immediately after giving effect to, this Amendment on or the Fourth Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date.
(g) All costs and, to the extent invoiced prior to the First Fourth Amendment Effective Date for which invoices have been presentedDate, expenses (including all reasonable reasonable, documented, out-of-pocket legal fees and expenses (including reasonable fees, charges of consultants and disbursements of counselother advisors) required and other compensation payable to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall and Xxxxx Fargo Securities, LLC will have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect been paid to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000extent then due.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on Acceptance by the date (the “First Amendment Effective Date”) on which all Banks of the foregoing amendments shall be subject, without limitation, to the following conditions precedent have been satisfied or waivedconditions:
(ia) No Default or Event of Default under the General Administrative Credit Agreement shall have occurred and be continuing (other than a Default or Event of Default which shall have been waived in writing by the Banks).
(b) All proceedings in connection with the transactions contemplated by this Amendment shall be reasonably satisfactory in form and substance to the Majority Banks and the Agent's Special Counsel, and the Agent shall have received a all information and such counterpart originals or certified copies of this Amendmentsuch documents and such other certificates, opinions or documents as the Majority Banks and the Agent's Special Counsel may reasonably require.
(c) The Borrower shall have executed and delivered by a duly authorized officer to the Agent for redistribution to each of the U.S. Borrower, Banks a replacement Revolving Credit Note in the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” amount of each Bank's Commitment as set forth in a form as provided by the Administrative Agent;Schedule I hereto.
(iid) Each of the General Administrative Agent Banks shall have received an executed Acknowledgment the favorable opinions addressed to the Banks and Consentthe Agent and dated the Effective Date, in form and substance satisfactory to the form set forth at Agent, of Xxxxx X. Xxxxxxxxx, Senior Vice President and General Counsel of the end REIT and the Borrower.
(e) The Borrower shall have paid to the Agent for the benefit of the Banks all amounts owing by the Borrower on the Effective Date pursuant to ss. 4.9 of the Credit Agreement on account of the modification of the Commitments on that date effected by this Amendment, from each Loan Party signatory thereto;.
(iiif) the General Administrative Agent BKB shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart the compensation contemplated in the third paragraph of this Amendment the letter dated June 4, 1998 from BKB to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000REIT.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berkshire Realty Co Inc /De)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 1 Effective Date”) on which all of the following conditions precedent have been satisfied are satisfied, or waivedwaived by the Administrative Agent in its sole discretion:
(a) The Administrative Agent shall have received from (i) each Lender and (ii) each Loan Party a duly executed counterpart of this Amendment signed on behalf of such party (which may include facsimile or other electronic transmission of a signed signature page of this Amendment).
(b) The Administrative Agent shall have received from the General Borrower the Extension Fee set forth in Section 2.12(c) of Annex I attached hereto.
(c) The Administrative Agent shall have received a counterpart favorable written opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, special counsel for the Loan Parties, (ii) Walkers Bermuda, Bermuda counsel for the Loan Parties, and (iii) Cains Advocates Limited, Isle of Man counsel for the Loan Parties, in each case (A) dated the Amendment No. 1 Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(d) The Borrower shall have paid (i) all reasonable, documented and invoiced fees payable to the Administrative Agent or any affiliate thereof as agreed between the Administrative Agent and the Borrower (including, without limitation, the fees set forth in the Engagement Letter, dated as of April 29, 2020, between the Borrower and Bank of America, N.A. (the “Amendment Engagement Letter”)), and (ii) all reasonable fees, expenses and disbursements of Xxxxx & Xxx Xxxxx PLLC, as counsel for the Administrative Agent, incurred in connection with the preparation, negotiation and execution of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Amendment to the extent required by clause invoiced at least one (vi1) below; provided that Business Day prior to the date hereof, subject to any Lender may signify its consent to this fee cap set forth in the Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;Engagement Letter.
(iie) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, in a certificate from a Responsible Officer of the form Borrower certifying as to the matters set forth at the end of this Amendment, from each Loan Party signatory thereto;in Section 2 hereof.
(iiif) the General The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment No. 1 Effective Date and certifying:
(ai) for distribution to each Term Lender which has delivered a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1) if available from an executed counterpart official in such jurisdiction, certified as of this Amendment a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the General Administrative Agent good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on or the Amendment No. 1 Effective Date and at all times since a date prior to the First Amendment Effective Date, an amendment fee equal to 1.00% date of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date resolutions de-scribed in clause (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretioniv) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;below,
(iv) the General Administrative Agent shall have received such certificates that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or other action, incumbency certificates and/or other certificates equivalent governing body) of Responsible Officers of each such Loan Party as (or its managing general partner or managing member) authorizing the General Administrative Agent may reasonably require evidencing execution, delivery and performance of the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents dated as of the Amendment No. 1 Effective Date to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or is to be a party;amended and are in full force and effect on the Amendment No. 1 Effective Date,
(v) as to the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date incumbency and has taken such specimen signature of each officer executing any Loan Document or any other steps document delivered in connection with the redemption herewith on behalf of the 2009 Notes as the General Administrative Agent may reasonably require; andsuch Loan Party,
(vi) as to the General absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party, and
(vii) such other documents as the Administrative Agent and the Lenders on the Amendment No. 1 Effective Date may reasonably request (including tax identification numbers and addresses).
(g) The Lenders shall have received evidence reasonably satisfactory a solvency certificate substantially in the form of Exhibit C to it that the aggregate principal amount Credit Agreement and signed by a Financial Officer of the Tranche A U.S. Revolving Credit Commitments Borrower confirming the solvency of the Borrower and its Subsidiaries on the First Amendment Effective Date (a consolidated basis, in each case, after giving effect to this Amendment on the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.Amendment No. 1
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Fourth Amendment Effective Date”) on which all upon satisfaction of the following conditions precedent in a manner satisfactory to the Administrative Agent and the Lenders:
(a) The Administrative Agent shall have been satisfied received executed counterparts of the following documents and instruments or waivedsuch other items as are described below, as the case maybe, each in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, duly executed and delivered by a duly authorized officer of the U.S. Borrower, the other BorrowersCredit Parties, the Majority Lenders Administrative Agent and Extending Lenders each of the Lenders;
(ii) amended and restated Schedules 1.1, 3.15, 3.18, 3.19, 3.23(b)-(j), 4.14, 5.1, 5.4, 5.5, 5.9 and P-1 to the extent required Existing Credit Agreement;
(iii) the duly executed amendment to the Benchmark Subordination Agreement;
(iv) a duly executed Control Agreement for all accounts maintained with Bank of America, N.A.;
(v) a fee agreement, duly executed and delivered by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Borrower and the Administrative Agent;
(iivi) the General Approved Budget, certified by a Responsible Officer of the Borrower, certifying that the projections therein have been prepared in good faith based on reasonable assumptions, and that such projections contain no statements or conclusions (and there are no omissions of information) which are based upon or include information known to the Credit Parties to be misleading in any material respect or which fail to take into account information known to the Credit Parties regarding materials reported therein;
(vii) the most recently available audited consolidated balance sheet of Holdings and its Subsidiaries, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the corresponding period;
(viii) the Perfection Certificate;
(ix) copies of UCC, United States Patent and Trademark Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Credit Party as debtor and that are filed in those state and county jurisdictions in which any property of any Credit Party is located and the state and county jurisdictions in which any Credit Party is organized or maintains its principal place of business and such other searches that the Administrative Agent shall have received deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(x) a legal opinion from (a) Gxxxxxx Pxxxxxx LLP, designated transactional counsel to the Credit Parties and (b) Txxx Xxxxxxxxxx & Hollister LLP and Sxxxx & Wxxxxx L.L.P., local Indiana and Nevada counsel to the Credit Parties, respectively;
(xi) customary insurance certificates and endorsements thereto naming the Administrative Agent (on behalf of the Lenders) as an executed Acknowledgment additional insured or loss payee (and Consentmortgagee), as the case may be, under all insurance policies to be maintained with respect to the properties of the Credit Parties forming part of the Collateral; provided, in the form set forth at event such certificates and endorsements are not provided on the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Fourth Amendment Effective Date, an amendment fee equal to 1.00% the Borrower shall provide such certificates and endorsements in accordance with Schedule 4.14 of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentCredit Agreement;
(ivxii) the General Administrative Agent shall have received such certificates a certificate of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with of each Credit Party dated the Fourth Amendment Effective Date, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of each Credit Party, as of a recent date, from such Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of such Credit Party, and (3) is a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of such Credit Party authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which such Loan Credit Party is a party and, in the case of Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or is amended and are in full force and effect, and (B) as to be the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Credit Party (together with a partycertificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (xii);
(vxiii) a certificate signed by a Responsible Officer of the General Administrative Agent shall have received evidence reasonably satisfactory to it that Borrower dated the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Fourth Amendment Effective Date certifying (I) no Default or Event of Default exists, (II) all representations and has taken warranties of each Credit Party set forth in the Loan Documents are true and correct, and (III) all other conditions set forth in this Section 4 have been satisfied;
(xiv) a Loan Request;
(xv) the Sacramone Note;
(xvi) a new or amended employment agreement by and between Fxxx Xxxxxxxxx and Benchmark;
(xvii) a new or amended employment agreement by and between Bxxxx XxXxxxx and Benchmark;
(xviii) a solvency certificate from the chief executive officer or chief financial officer of Holdings in substantially the form of Exhibit 2.1(c) to the Credit Agreement;
(xix) a trademark security agreement executed by Crosslayer, Inc.;
(xx) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Credit Parties; and
(xxi) such other steps additional documents, information or agreements as the Administrative Agent may reasonably request.
(b) The Fourth Amendment Lateral Stock shall have been issued by Holdings.
(c) The Borrower shall have appointed a chief restructuring officer on terms (including, without limitation, scope of duties) acceptable to the Lenders in their reasonable discretion.
(d) All fees and other amounts due and payable hereunder or under the Credit Agreement (including without limitation the reasonable and documented fees and expenses of King & Spalding LLP) on or prior to the Fourth Amendment Effective Date, including, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or any other Loan Document.
(e) There shall not exist any judgment, decree or order of any Governmental Authority which would prevent the performance of this Amendment, the Credit Agreement (as modified hereby) or the transactions contemplated hereby or declare unlawful this Amendment or the other transactions contemplated hereby.
(f) The representations and warranties set forth in Section 5 of this Amendment shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date.
(g) The Administrative Agent and Lenders shall have satisfactorily completed their business and legal due diligence review of the Credit Parties and their assets, including their review with respect to the general affairs, management, prospects, financial position, stockholders equity, results of operations, corporate and capital structure of Holdings and its Subsidiaries, and tax and accounting diligence, including with respect to the potentially accrued and unpaid payroll tax liability of the Credit Parties. Other than changes occurring in the ordinary course of business, no information or materials are or should have been available to any Credit Parties and their Subsidiaries as of the Fourth Amendment Effective Date that are materially inconsistent with the material previously provided to the Administrative Agent and Lenders for their due diligence review of the Credit Parties.
(h) All other documents and legal matters in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent transactions contemplated by this Amendment shall have received evidence reasonably been delivered or executed or recorded and shall be in form and substance satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Administrative Agent.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Section 3 of this Amendment shall become effective on as of the date (the “First Second Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent (or its counsel) shall have received (i) a counterpart of this Amendment, duly executed and delivered by completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly authorized officer executed and completed counterpart hereof that bears the signature of the U.S. Borrower, Administrative Agent and (iii) a duly executed and completed counterpart hereof that bears the other Borrowers, signature of each of the Majority Lenders party hereto (comprising the Required Lenders) and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenteach Incremental Revolving Lender;
(iib) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, Confirmation in the form set forth at the end of this Amendment, Annex I hereto from an authorized officer of each Loan Party signatory theretoParty;
(iiic) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment reasonable and documented out of pocket expenses (to the General Administrative Agent on or extent invoiced no later than three Business Days prior to the First Second Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement, (ii) on behalf of itself, BMO Capital Markets Corp., as lead arranger, and each Lender consenting to which this Amendment, the fees owed to it, BMO Capital Markets Corp. and/or such Loan Party Lender pursuant to that certain mandate letter, dated as of March 31, 2020, between the Borrower and BMO Capital Markets Corp. and (iii) on behalf of each Lender, all accrued interest on outstanding Loans on the Second Amendment Effective Date and, if such Lender is a party Revolving Lender, all commitment fees and participation fees payable under Section 2.12 of the Credit Agreement, whether or is to be a partynot any such amounts are then due and payable;
(vd) the General The Administrative Agent shall have received evidence a certificate of each Loan Party, dated as of the Second Amendment Effective Date, in form and substance reasonably satisfactory acceptable to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching a copy of (i) each Organizational Document of each Loan Party, certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing this Amendment, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the Loan Documents to which it that is a party, in each case, certified as of the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Second Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and has taken effect without modification or amendment, and (iv) a good standing certificate (to the extent such other steps in connection with concept exists) from the redemption applicable Governmental Authority of the 2009 Notes each Loan Party’s jurisdiction of incorporation, organization or formation, as the General Administrative Agent may reasonably require; andapplicable;
(vie) the General The Administrative Agent shall have received evidence a certificate of the chief financial officer or treasurer (or other comparable officer) of Holdings certifying the solvency, after giving effect to this Amendment, of Holdings and its Subsidiaries on a consolidated basis in substantially the form of Exhibit E to the Amended Credit Agreement;
(f) The Administrative Agent shall have received the executed legal opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Second Amendment Effective Date) of (i) Xxxx Xxxxxxx & Xxxxxx LLP, New York counsel to the Loan Parties, and (ii) Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, Georgia counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to it that the aggregate principal amount of Administrative Agent;
(g) The Administrative Agent shall have received at least two (2) Business Days prior to the Tranche A U.S. Revolving Credit Commitments on the First Second Amendment Effective Date all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five (5) Business Days prior to the Second Amendment Effective Date by the Administrative Agent required by regulatory authorities under applicable Anti-Money Laundering Laws, including the USA PATRIOT Act and other “know your customer” rules and regulations; and
(i) Section 2.20(a)(A) shall be satisfied with respect to the Incremental Revolving Commitment, (ii) the Borrower shall be in compliance on a Pro Forma Basis (both before and after giving effect to the minimum Incremental Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 actual drawings thereunder on the Second Amendment Effective Date) with the Financial Performance Covenant as of the Existing Credit Agreementlast day of the most recently ended Test Period (with any proceeds of the Incremental Revolving Commitment and any Cure Amounts to be excluded for purposes of the cash component of the Total Net Leverage Ratio) will be not less than $700,000,000and (iii) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (i) and (ii) above, together with reasonably detailed calculations demonstrating compliance with clause (ii) above.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject to the date (the “First Amendment Effective Date”) on which all condition precedent that each of the following conditions precedent have been satisfied or waivedbe received by the Agent (unless otherwise waived in writing by the Agent), each of which shall be satisfactory in form and substance to the Agent:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided executed by the Administrative AgentBorrower and by the Required Lenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment and ConsentConsent of the Guarantors, substantially in the form set forth at of Exhibit A hereto, executed by each of the end of this Amendment, from each Loan Party signatory theretoGuarantors (as defined below) (the "Acknowledgment");
(iiic) payment by the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment Borrower to the General Administrative Agent on or prior to the First Amendment Effective Date, of an amendment fee in an amount equal to 1.00.10% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Amendment) of those Lenders who have executed this Amendment ("Approving Lenders") for distribution by the Agent to the Approving Lenders on a pro rata basis based upon their Applicable Commitment Reduction Percentage; provided, however, no such amendment fee will be paid to any Lender that fails to return an executed original of 33.33% and any simultaneous addition this Amendment to the Agent on or before April 6, 2001;
(d) payment by the Borrower to the Agent, of any new U.S. Revolving Lenders pursuant to Section 2.6 and all other fees and expenses which are due and payable;
(e) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Existing Credit AgreementBorrower with respect to each of the officers of the Borrower authorized to execute and deliver this Amendment and attaching and certifying copies of the resolutions of the board of directors of the Borrower, authorizing the execution, delivery and performance of this Amendment; and
(f) will be not less than $700,000,000such other approvals, opinions or documents as the Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Rock Tenn Co)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on and the date amendments set forth in Section 2 hereof, are subject to satisfaction (or waiver by the “First Amendment Effective Date”Administrative Agent and the Lender party hereto) on which all of the following conditions precedent (the first date of such satisfaction (or waiver) being the “Amendment No. 1 Effective Date”):
(a) the Administrative Agent (or its counsel) shall have been satisfied or waived:
received (i) from each of the General Borrower and the Guarantors, and (ii) from the sole Lender party hereto constituting the Required Lenders either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent shall have received (which may include delivery of a signed signature page of this Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iib) the General Borrower shall have delivered to the Administrative Agent shall have received an executed Acknowledgment and Consent(or its counsel) a certificate from a Responsible Officer of the Borrower, in dated as of the form Amendment No. 1 Effective Date, to the effect set forth at the end of this Amendment, from each Loan Party signatory theretoin Section 4(b) and (d) hereof;
(iiic) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to or substantially concurrently with the First Amendment No. 1 Effective Date, an amendment fee equal the Borrower shall have paid (or caused to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment be paid) to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with the preparation, execution and delivery of this Amendment and the other Loan Documents to which such Loan Party is a party or is instruments and documents to be a party;
delivered hereunder, if any (v) but limited, in the General case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent shall have received evidence reasonably satisfactory Agent), in each case, to it that the U.S. Borrower has given an irrevocable call notice extent invoiced at least one Business Day prior to redeem all 2009 Notes outstanding on the First Amendment No. 1 Effective Date and has taken such other steps in connection with otherwise required to be paid by the redemption Borrower on or prior to the Amendment No. 1 Effective Date pursuant to, and subject to the limitations set forth in, Section 9.05 of the 2009 Notes Existing Credit Agreement and (without duplication) the correlative provisions set forth in any other Loan Document (as defined in the General Administrative Agent may reasonably requireExisting Credit Agreement); and
(vid) prior to or substantially concurrently with the General Administrative Agent Amendment No. 1 Effective Date, the Borrower shall have received evidence reasonably satisfactory paid (or caused to it that be paid) to the aggregate principal amount Administrative Agent, for the account of the Tranche A U.S. Revolving Credit Commitments sole Lender party hereto, all fees due and payable to such Lender in connection with this Amendment, on the First Amendment Effective Date (after giving effect terms and subject to the minimum Revolving Credit Commitment Reduction of 33.33% conditions as separately agreed in writing between the Borrower and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Lender.
Appears in 1 contract
Samples: Delayed Draw Bridge Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective and the obligation of Sprint Lender to make the Incremental Sprint Term Loan hereunder on the date (Incremental Sprint Term Loan Effective Date are subject to the “First Amendment satisfaction or waiver on or prior to the Incremental Sprint Term Loan Effective Date”) on which all Date of each of the following conditions precedent have been satisfied or waivedconditions:
(ia) the General The Administrative Agent shall have received (i) a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. BorrowerHoldings, the other BorrowersBorrower and Sprint Lender, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment Acknowledgement and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
Party, (iii) a Note with respect to the General Incremental Sprint Term Loan conforming to the requirements hereof and executed by a duly Authorized Officer of the Borrower and (iv) an Assumption Agreement executed and delivered by a duly authorized officer of each of Clearwire Legacy LLC and Clearwire Xohm LLC.
(b) The Administrative Agent shall have received opinions, addressed to the Administrative Agent and Sprint Lender dated the Incremental Sprint Term Loan Effective Date, from (ai) for distribution Xxxxxxxx & Xxxxx LLP, special New York counsel to each the Borrower and (ii) Xxxxxx X. Xxxxxx.
(c) The Administrative Agent shall have received from the Borrower, a certificate, dated the Incremental Sprint Term Lender which has delivered Loan Effective Date, signed by an executed counterpart Authorized Officer of the Borrower with (x) copies of the resolutions, or such other administrative approval, of the Borrower approving the Incremental Sprint Term Loan, the Acknowledgement and Consent and the Assumption Agreement to be reasonably satisfactory to the Administrative Agent and (y) a statement that all of the applicable conditions set forth in Sections 3(f) and 3(g) of this Amendment to the General have been satisfied as of such date.
(d) The Administrative Agent on or prior shall have received all fees required to the First Amendment Effective Datebe paid, an amendment fee equal and all expenses required to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date be paid for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed on or paid by any before the Incremental Sprint Term Loan Party hereunder or under any other Loan Document;Effective Date.
(ive) the General The Administrative Agent shall have received such certificates from the President, Chief Financial Officer or another senior financial or accounting officer of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as Holdings a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it solvency certificate that shall document the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding solvency of Holdings and its Subsidiaries on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (a consolidated basis after giving effect to the minimum Revolving transactions contemplated hereby.
(f) All representations and warranties contained in the Credit Commitment Reduction of 33.33% Agreement (as amended by this Amendment) or in the other Loan Documents in effect on the Incremental Sprint Term Loan Effective Date both before and any simultaneous addition of any new U.S. Revolving Lenders pursuant after giving effect to Section 2.6 the Incremental Sprint Term Loan shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Existing Credit AgreementIncremental Sprint Term Loan Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and except to the extent already qualified by materiality, in which case such representations and warranties shall be true and correct in all respects.
(g) will After giving effect to this Amendment, no Default or Event of Default shall have occurred and be not less than $700,000,000continuing.
Appears in 1 contract
Samples: Incremental Sprint Term Loan Amendment (Clearwire Corp /DE)
Conditions to Effectiveness of Amendment. This 6.1 The obligations of Purchasers and AP Noteholders to consummate the transactions contemplated by this Amendment and the Note Purchase Agreement shall become effective on be subject to the date fulfillment of Purchasers’ and AP Noteholders’ waiver, at or prior to the Closing, of each of the following conditions, in each case in a manner and in form and substance satisfactory to the Noteholder Representative (such date, the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:):
(i) the General Administrative Agent 6.1.1 The Loan Parties shall have received a counterpart delivered to the Noteholder Representative each agreement, instrument, document, certificate, opinion and other item required by Noteholder Representative in its sole discretion to effectuate the intent of this Amendment, including those described in the closing checklist.
6.1.2 This Amendment, the AP Notes, the Warrants, and each other Loan Document required to be delivered hereunder shall have been duly executed and delivered by a duly authorized officer the Loan Parties, and, as applicable, the Noteholder Representative, the Purchasers and AP Noteholders, and shall be in full force and effect.
6.1.3 With respect to the Senior Loan, the Loan Parties shall have delivered to Noteholder Representative evidence of the U.S. Borrowerpayment in full and cancellation of such Indebtedness, the other Borrowers, the Majority Lenders and Extending Lenders including terminations of UCC financing statements filed in connection with such Indebtedness.
6.1.4 The Loan Parties shall have delivered to the extent Noteholder Representative such UCC financing statements and intellectual property security agreements, suitable in form and substance for filing in all places required by clause (vi) below; provided that any Lender applicable Law to perfect the Liens of Noteholder Representative under the Security Agreement, and such other documents and/or evidence of other actions as may signify its consent be necessary under applicable Law to this Amendment by instead executing a “lender addendum” in a form perfect the Liens of Noteholder Representative under the Security Agreement as provided to the Collateral as Noteholder Representative may require.
6.1.5 All corporate action necessary for the valid execution, delivery and performance by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart Parties of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;Documents executed in connection herewith shall have been duly and effectively taken and evidence thereof shall have been provided to the Noteholder Representative.
(iv) the General Administrative Agent 6.1.6 The Noteholder Representative shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each opinions from the Loan Party Parties’ respective counsel as the General Administrative Agent may reasonably require evidencing Noteholder Representative shall request, in each case in form and substance satisfactory to the identity, authority and capacity Noteholder Representative.
6.1.7 No Event of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent Default shall have received evidence reasonably satisfactory occurred and be continuing, or would occur or be deemed to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (occurred after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 modification described herein or the transactions contemplated hereby.
6.2 The obligations of the Existing Credit Agreement) will Loan Parties to consummate the transactions contemplated by this Amendment and the Note Purchase Agreement shall be not less than $700,000,000subject to the fulfillment or waiver by the Purchasers and AP Noteholders, at or prior to the Closing, of each of the following conditions:
6.2.1 This Amendment and each other Loan Document required to be delivered hereunder shall have been duly executed and delivered by the Purchasers and AP Noteholders, and, as applicable, the Loan Parties, and shall be in full force and effect.
Appears in 1 contract
Samples: Secured Note Purchase Agreement (TILT Holdings Inc.)
Conditions to Effectiveness of Amendment. This Amendment The amendment of the Existing Credit Agreement set forth herein shall become effective as of the first date on which each of the date following conditions to effectiveness have been satisfied or have been waived in accordance with Section 10.01 of the Existing Credit Agreement (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:):
(ia) the General The Administrative Agent shall have received a counterpart of this AmendmentAmendment Agreement, executed and delivered by a duly authorized officer of each of the U.S. Borrower, the other Borrowers, the Majority Lenders Borrowers and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;Required Lenders.
(iib) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution the account of each Lender that provides to each Term Lender which has delivered an the Administrative Agent its executed counterpart of signature page to this Amendment to the General Administrative Agent by 5:00 p.m. (Eastern time) on or prior to the First Amendment Effective DateApril 29, 2020, a consent fee in an amendment fee amount equal to 1.00% of $10,000 for each such Term consenting Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (bii) payment of all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed by the Borrowers under or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Agreement, including those expenses set forth in Section 5 hereof.
(c) The representations and the other Loan Documents to which such Loan Party is a party warranties made or is deemed to be a party;made in Section 3 hereof shall be true and correct.
(vi) Upon the General Administrative Agent reasonable request of any Lender made at least five days prior to the Amendment Effective Date, the Borrower shall have received evidence provided to such Lender, and such Lender shall be reasonably satisfactory satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least three days prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken (ii) at least three days prior to the Amendment Effective Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests at least five days prior to the Amendment Effective Date, a Beneficial Ownership Certification in relation to such other steps Borrower (it being understood that, upon the execution and delivery by any Lender of its signature page to this Amendment, the condition set forth in connection with the redemption of the 2009 Notes this clause (d) shall be deemed to be satisfied as the General Administrative Agent may reasonably require; and
(vi) the General to such Lender). The Administrative Agent shall have received evidence reasonably satisfactory to it that notify the aggregate principal amount Borrowers and the Lenders of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will such notice shall be not less than $700,000,000conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Stryker Corp)
Conditions to Effectiveness of Amendment. This Amendment shall will become effective on the date (the “First Second Amendment Effective Date”) on which all of upon
(a) receipt by the following conditions precedent have been satisfied or waivedAdministrative Agent of:
(i) executed signature pages to this Amendment from the General Administrative Agent shall have received a counterpart of this AmendmentRequired Lenders and each Credit Party party to the Credit Agreement;
(ii) the U.S. Security Agreement, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) beloweach grantor party thereto; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;and
(iii) the General U.S. Pledge Agreement, executed and delivered by a duly authorized officer of each pledgor party thereto;
(b) effectiveness of an amendment to the ABL Facility permitting the incurrence of Future Secured Notes in form and substance reasonably acceptable to the Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed understood that the draft amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General ABL Facility previously provided to the Administrative Agent is satisfactory);
(c) receipt by the Administrative Agent of $292,022,616.10 constituting 100% of the Net Cash Proceeds from the issuance of the Additional Senior Second Lien Notes, to be applied on or prior a pro-rata basis among the Term Loans in accordance with Section 5.2 of the Credit Agreement;
(d) payment by the Company of (i) the fees owed to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due Agents or their Affiliates and payable on or prior the Second Amendment Date as previously agreed to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses in writing and (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(ivii) the General reasonable costs and expenses of the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as and the General Administrative Collateral Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment (including the reasonable fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP as counsel to the other Loan Documents Agents and of any local counsel to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps Agents in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requirethis Amendment); and
(vie) the General Administrative Agent Agents shall have received evidence the executed legal opinions, in form and substance reasonably satisfactory to it that the aggregate principal amount Agents, of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special New York counsel to the Parent Borrower, (ii) Xxxxxx X. Xxxxxxxx, General Counsel of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date Parent Borrower and (after giving effect iii) Bass, Xxxxx & Xxxx PLC, special Tennessee counsel to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 certain of the Existing Credit Agreement) will be not less than $700,000,000U.S. Guarantors.
Appears in 1 contract
Samples: Credit Agreement (Hca Inc/Tn)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on and the date amendments set forth in Section 2 hereof, are subject to satisfaction (or waiver by the “First Amendment Effective Date”Administrative Agent and the Required Lenders party hereto) on which all of the following conditions precedent (the first date of such satisfaction (or waiver) being the “Amendment No. 3 Effective Date”):
(a) the Administrative Agent (or its counsel) shall have been satisfied or waived:
received (i) from each of the General Borrower and the Guarantors, and (ii) from the Lenders party hereto constituting the Required Lenders either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent shall have received (which may include delivery of a signed signature page of this Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iib) the General Borrower shall have delivered to the Administrative Agent shall have received an executed Acknowledgment and Consent(or its counsel) a certificate from a Responsible Officer of the Borrower, in dated as of the form Amendment No. 3 Effective Date, to the effect set forth at the end of this Amendment, from each Loan Party signatory theretoin Section 4(b) and (d) hereof;
(iiic) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to or substantially concurrently with the First Amendment No. 3 Effective Date, an amendment fee equal the Borrower shall have paid (or caused to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment be paid) to the General Administrative Agent on or prior to and the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including No. 3 Lead Arranger all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as and the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Amendment No. 3 Lead Arranger incurred in connection with the preparation, execution and delivery of this Amendment and the other Loan Documents to which such Loan Party is a party or is instruments and documents to be a party;
delivered hereunder, if any (v) but limited, in the General case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent shall have received evidence reasonably satisfactory Agent), in each case, to it that the U.S. Borrower has given an irrevocable call notice extent invoiced at least one Business Day prior to redeem all 2009 Notes outstanding on the First Amendment No. 3 Effective Date and has taken such other steps in connection with otherwise required to be paid by the redemption Borrower on or prior to the Amendment No. 3 Effective Date pursuant to, and subject to the limitations set forth in, Section 9.05 of the 2009 Notes Existing Credit Agreement and (without duplication) the correlative provisions set forth in any other Loan Document (as defined in the General Administrative Agent may reasonably requireExisting Credit Agreement); and
(vid) prior to or substantially concurrently with the General Administrative Agent Amendment No. 3 Effective Date, the Borrower shall have received evidence reasonably satisfactory paid (or caused to it that be paid) to the Administrative Agent, for the account of each Lender party hereto, a consent fee in an amount equal to 0.25% of the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments Term Loans held by such Lender as of the Amendment No. 3 Effective Date, which shall be fully earned and due and payable on the First Amendment No. 3 Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Date.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First "Amendment Effective Date”") on which all upon (a) payment by the Borrower to the Agent for the account of the following conditions precedent have been satisfied or waivedLender of the first installment of the amendment fee in an amount equal to $25,000 and (b) receipt by the Agent of the following, each in form and substance satisfactory to the Agent:
(i) the General Administrative Agent shall have received a counterpart counterparts of this Amendment, duly executed and delivered by a duly authorized officer of the U.S. each Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment Amended and Consent, Restated Revolving Credit Note in the form set forth at the end of this Amendment, from attached hereto as Annex A duly executed by each Loan Party signatory theretoBorrower;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an Note C in the form attached hereto as Exhibit B-4 duly executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documenteach Borrower;
(iv) certified copies of the General Administrative Agent shall have received such certificates articles of resolutions or incorporation and bylaws of Mid Bus and Brutzer, each as in effect on the Amendment Effective Date, and with respect to the other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Borrowers and the other Loan Documents Guarantors, a certificate of an appropriate officer of such Borrowers and Guarantors to the effect that none of such documents relating to such Borrowers and Guarantors have been amended or otherwise modified since July 31, 1998, the date on which such documents were last delivered to Agent and Lender under the Loan Party is a party or is to be a partyAgreement;
(v) certificates of incumbency and specimen signatures with respect to each of the General Administrative Agent shall have received evidence reasonably satisfactory officers of the Borrowers and the Guarantors who is authorized to execute and deliver the Loan Documents to which it is a party and each other certificate, agreement or other document to be executed by the Borrowers and the Guarantors in connection with this Amendment;
(vi) a certificate evidencing the good standing of each of Mid Bus and Brutzer in the jurisdiction of its incorporation and in each other jurisdiction in which it is required to be qualified as a foreign corporation to transact business as presently conducted;
(vii) a certificate of the President of Collins or of xxx Xxxancial Officer that all representations and warranties of Borrowers set forth in the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Loan Documents are true and correct as of the First Amendment Effective Date and has taken such other steps in connection with the redemption that no Default or Event of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date Default exists (after giving effect to this Amendment), and Agent and Lender shall be satisfied as to the minimum Revolving Credit Commitment Reduction of 33.33% truth and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.accuracy thereof;
Appears in 1 contract
Samples: Loan and Security Agreement (Collins Industries Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have has been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of the U.S. Borrower, Credit Parties and all the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment payment for any and Consent, all fees owing in the form set forth at the end of connection with this Amendment, from including the amendment fee in the aggregate amount of $165,000 for all such Lenders, which amendment fee shall be divided on a pro rata basis among such Lenders by Agent based on each Loan Party signatory thereto;Lender’s Commitment Percentage (after giving effect to the amendments set forth in this Amendment, including the increase of the Total Commitment).
(iiic) to the General Administrative extent invoiced, the Lenders, the Agent and the Book-Runner shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart payment or reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable their out-of-pocket expenses (in connection with this Amendment and any other out-of-pocket expenses of the Lenders, the Agent or the Book-Runner required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentcounsel for the Agent;
(ivd) the General Administrative Borrowers shall have delivered to the Agent such certificates of authorized officers of the Borrowers and the Guarantors, certificates of Governmental Authorities, certified copies of the certificates of incorporation, formation, bylaws and operating agreements, as applicable, of the Borrowers and the Guarantors (or certified confirmation that no amendments, modifications or revisions have been to those previously certifies and delivered to the Agent, as applicable), certified copies of resolutions of the directors, managers or members, as applicable of the Borrowers and the Guarantors and such other documents, instruments and agreements as the Agent shall require to evidence the valid corporate existence and authority to conduct business of the Borrowers and the Guarantors and the due authorization, execution and delivery of this Amendment any other documents related to this Amendment and any other legal maters relating to the Borrowers, the Guarantors, any Subsidiary or the other Loan Documents by the Borrowers and/or the Guarantors, all in a form and substance reasonable satisfactory to the Agent and its counsel;
(e) the Borrowers shall have delivered to the Agent a favorable opinion of Xxxxxx Xxxxxxxxx LLP, counsel to the Borrowers and the Guarantors dated as of the Effective Date, addressed to the Agent and the Lenders and covering such matters in connection with the foregoing as the Agent or the Lenders may reasonably request, in a form and substance reasonable satisfactory to the Agent and its counsel;
(f) the Borrowers shall have delivered to the Agent new duly completed and executed Revolving Credit Notes dated as the Effective Date for each Lender who has increased its Commitment pursuant to this Amendment, and in each case payable to the order of such Lender;
(g) the Borrowers shall have delivered to the Agent security documents and other legal documentation related to the pledge of 65% of the issued and outstanding equity interests of XxxXx and the Pledged Inter-Company Loans and each Pledged Inter-Company Note, each of which shall be in form and substance satisfactory to the Agent and its counsel;
(h) the Agent shall have received and be satisfied with asset appraisals (inventory, equipment and the Timberland Properties) of certain assets to be specified by the Agent from appraisers satisfactory to the Agent; provided, that, such certificates of resolutions appraisers shall be engaged directly by the Agent and shall have no direct or indirect interest, financial or otherwise, in the Property or the transaction; and
(i) the Borrowers shall have delivered to the Agent such other actiondocuments, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party instruments and agreements as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps request in connection with the redemption purposes of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence this Amendment, all in form and substance reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Agent and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000its counsel.
Appears in 1 contract
Samples: Credit Agreement (Neenah Paper Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon receipt by the date (Company and the “First Purchaser of counterpart signatures to this Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, duly executed and delivered by a the Company and the Purchaser and upon receipt by the Purchaser of counterpart signatures to the Payoff Commitment Agreement and Confession of Judgment duly authorized officer executed and delivered by the Company and the Purchaser. Accordingly, the Company acknowledges and agrees that by no later than 5:00 p.m. on the date that is two (2) business days following the closing date of the U.S. Borroweroffering of Units pursuant to the Company’s Registration Statement on Form S-1 (File no. 333-XXXXXX) (the “Offering”), the other BorrowersCompany is obligated to pay the Purchaser, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of consideration for entering into this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment $1,00,000.00 by wire to the General Administrative Agent Purchaser. Additionally, the Company agrees to include a proposal in its proxy statement for its 2023 Annual Meeting of Stockholders for the purpose of obtaining the approval of the holders of a majority of the Company’s outstanding voting Common Stock, to effectuate the reduction of the exercise price set forth in Section 2(b) of the Common Stock Purchase Warrants issued to Purchaser on or prior March 27, 2023 (the “Existing Warrants”) to the First Amendment Effective Dateper unit public offering price of the Offering, an amendment fee equal to 1.00% in accordance with Nasdaq Rule 5635(d) (the “Shareholder Approval”) with the recommendation of the Company’s Board of Directors that such proposal be approved, and the Company shall solicit proxies from its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such Term Lender’s outstanding Term Loans on proposal. The Company shall use its reasonable best efforts to obtain such Shareholder Approval. If the First Amendment Effective Date Company does not obtain Shareholder Approval at the first meeting, the Company shall call a meeting every six (it being agreed that 6) months thereafter to seek Shareholder Approval until the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption earlier of the 2009 Notes as date Shareholder Approval is obtained or the General Administrative Agent may reasonably require; and
(vi) Existing Warrants are no longer outstanding. Until such approval is obtained, the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 exercise price of the Existing Credit Agreement) Warrants will be not less than $700,000,000remain unchanged. In addition, the parties agree to amend this Amendment promptly after filing the Registration Statement on Form S-1 referred to above solely to fill in the registration statement filing number assigned by the Securities and Exchange Commission.
Appears in 1 contract
Samples: Securities Purchase Agreement (INVO Bioscience, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent Lender shall have been satisfied or waived:
received (i) counterparts of this Amendment duly executed by each of the General Administrative Agent shall have received a counterpart Loan Parties; (ii) the Amended and Restated Revolver Note, dated as of the date of this Amendment, in substantially the form attached hereto as Exhibit A, executed by the Borrower; (iii) the Guarantees, in substantially the form attached hereto as Exhibit B, and the Security Agreement, in substantially the form attached hereto as Exhibit C, each executed and delivered by the Guarantors that have not executed and delivered to the Lender a Guarantee and the Security Agreement, each dated as of June 30, 2002; (iv) a certified copy of the resolutions of the Board of Directors of the Borrower and each of the Guarantors, in substantially the form attached hereto as Exhibit D, evidencing approval of this Amendment and the other documents and matters contemplated hereby, and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and such other documents, including, but not limited to, a certificate of "good standing" (or its equivalent), certified copies of the articles of incorporation and true and correct copies of the bylaws; (v) a favorable opinion of counsel for the Borrower, in substantially the form attached hereto as Exhibit E, as to the due execution and delivery by the Borrower and each of the Guarantors of this Amendment and the other documents contemplated hereby and as to such other matters as the Lender may reasonably request; (vi) a signed copy of a certificate of an officer of the Borrower and each of the Guarantors, in substantially the form attached hereto as Exhibit F, who shall certify the names of the officers of the Borrower and the respective Guarantors authorized to sign this Amendment and the other documents or certificates to be delivered pursuant to this Amendment by the Borrower, each of the Guarantors, or any of its respective officers, together with the true signatures of such officers (Lender may conclusively rely on such certificate until it shall receive a further certificate of the Secretary or an Assistant Secretary of the Borrower or the respective Guarantor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate); (vii) a certified copy of the written approval and consent of the holders, if any, of any obligations of the Borrower which must consent to this Amendment and the Borrowings under the Agreement and the other Loan Documents, as amended hereby; (viii) Amendment No. 1 to Subordination Agreements, in substantially the form attached hereto as Exhibit G, to be signed by each Affiliate that is a holder of debt of the Borrower other than the Lender, if any, or unless waived by the Lender; (ix) Subordination Agreements, in substantially the form attached hereto as Exhibit H, each executed and delivered by the Guarantors that did not execute and deliver to the Lender a Subordination Agreement, dated as of June 30, 2002; (x) a certificate, in substantially the form attached hereto as Exhibit I, signed by the President, Vice President or by any other duly authorized officer of the U.S. Borrower, solely in such corporate capacity, stating that, based on an examination which in the other Borrowersopinion of the signer is sufficient to enable him to make an informed statement, to the Majority Lenders best of his knowledge:
(a) The representations and Extending Lenders warranties contained in Section 4.01 of the Agreement are correct on and as of the date of this Amendment as though made on and as of such date except to the extent required by clause (vi) below; provided that any Lender may signify its consent such representations and warranties specifically relate to this Amendment by instead executing a “lender addendum” in a form as provided an earlier date or are affected by the Administrative Agent;transaction contemplated under the Agreement as amended hereby; and
(iib) the General Administrative Agent shall have received an executed Acknowledgment No event has occurred and Consent, in the form set forth at the end of is continuing or would result from this Amendment, from each Loan Party signatory thereto;which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both; and
(iiixi) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined payment by the General Administrative Agent in its sole discretion) and (b) all other Borrower of the fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedcosts, including all reasonable out-of-pocket expenses (including reasonable feesattorneys' fees and expenses, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and the other Loan Documents to documents and matters contemplated hereby, and all fees and costs still outstanding which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps were incurred in connection with the redemption of Agreement and the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (PBSJ Corp /Fl/)
Conditions to Effectiveness of Amendment. This Amendment shall ---------------------------------------- become effective on the date (the “First actual date of such effectiveness, the "Eighth Amendment Effective Date”") on which all as of the following conditions precedent have been satisfied or waiveddate first above written when:
(ia) This Amendment shall have been duly executed and delivered by each of the General Administrative parties hereto.
(b) The Acknowledgment and Consent dated as of the date hereof by the Company and Pameco Investment Company, Inc. shall have been duly executed and delivered by each of the parties thereto.
(c) The Agent shall have received a counterpart certificate of the Secretary or an Assistant Secretary of each Loan Party, dated as of the Eighth Amendment Effective Date, and certifying (i) as to the due authorization, execution, delivery and performance of this Amendment, the Acknowledgment and Consent attached hereto and related matters, and (ii) as to the incumbency and specimen signature of such Loan Party's officers executing this Amendment and all other documents required or necessary to be delivered hereunder or in connection herewith. Such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate.
(d) The Agent shall have received true and complete copies of the certificate of incorporation and by-laws of each Loan Party, certified as of the Eighth Amendment Effective Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of such Loan Party.
(e) The Agent shall have received an opinion of the Company's counsel with respect to corporate existence, due authorization, execution and delivery, enforceability and no conflict with law in form and substance satisfactory to the Agent.
(f) The Agent, for the benefit of the Tranche C Term Loan Lenders, shall have received an upfront fee of $100,000.
(g) The Agent shall have received copies, attached to a certificate from the Secretary or Assistant Secretary of the Company, certifying as true and correct (i) the loan agreement entered into between Quilvest and the Company (the "Quilvest Loan Agreement") which shall contain provisions which grant to Quilvest a security interest in the Collateral (other than the Seller Collateral (as defined in the Receivables Purchase Agreement)) and otherwise be in form and substance acceptable to the Agent and Lenders, (ii) any UCC financing statements to be executed by the Company in favor of Quilvest, (iii) the Subordination Agreement and (iv) any and all other documents or certificates executed in connection with the Quilvest Loan Agreement, together with evidence that the loan made by Quilvest pursuant to the Quilvest Loan Agreement in an amount not less than $7,500,000 has funded (the "Quilvest Loan").
(i) The Agent shall have received, for the account of each Tranche C Term Loan Lender, the Tranche C Term Loan Notes in the form of Exhibit B to this --------- Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Company.
Appears in 1 contract
Samples: Credit Agreement (Pameco Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent shall have received (i) a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of the U.S. BorrowerBorrowers and First Amendment Lenders, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
of the Required Lenders who is not also a First Amendment Lender, the Parent, International and the US Borrower and (iii) for the General account of each Lender that has requested a Note pursuant to Section 4.04(e) of the Credit Agreement, a Note with respect to its Tranche A Term Loan made on the First Amendment Effective Date conforming to the requirements hereof and executed by a duly authorized officer of the US Borrower.
(b) The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment opinions, addressed to the General Administrative Agent on or prior and each of the First Amendment Lenders and dated the First Amendment Effective Date from (i) Xxxxxxxx & Xxxxx LLP, New York counsel to the US Borrower and (ii) Xxxxxxx X. Xxxxx, General Counsel of the Company, each in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall have received a certificate of the US Borrower, dated the First Amendment Effective Date, an amendment fee equal as to 1.00% (i) the adoption of resolutions of the Board of Directors of the US Borrower authorizing (A) the execution, delivery and performance of this Amendment and (B) the borrowing contemplated hereunder, (ii) the incumbency and true signature of the officers of the US Borrower executing this Amendment and any Notes issued hereunder and (iii) the certificate of incorporation and by-laws of the US Borrower, which certificate shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel and executed by the secretary or any assistant secretary or a legal representative of such Term Lender’s outstanding Term Loans on US Borrower.
(d) The Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed by a Responsible Officer of the US Borrower, confirming compliance with the conditions set forth in paragraphs (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersa), as determined by the General Administrative Agent in its sole discretion(b) and (bc) of Section 6.02 of the Credit Agreement.
(e) The Administrative Agent, X.X. Xxxxxx Securities Inc. and the Lenders shall have received all other fees and other amounts earned, due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedDate, including including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;the US Borrower hereunder.
(ivf) the General The Administrative Agent shall have received such certificates of resolutions or other actiona Tranche A Borrowing Request from the US Borrower, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as requesting a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is Tranche A Term Borrowing to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding made on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Date.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject to the date satisfaction of all the following conditions precedent (the first date on which such conditions have been satisfied being referred to herein as the “First Sixth Amendment Effective Date”):
(a) on which The Administrative Agent (or its counsel) shall have received (i) a duly executed and completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly executed and completed counterpart hereof that bears the signature of the Administrative Agent and (iii) duly executed and completed counterparts hereof that bear the signature of all of the following conditions precedent Lenders;
(b) The Administrative Agent shall have been satisfied received an Acknowledgment and Confirmation in the form of Annex I hereto from an authorized officer of each Loan Party;
(c) The Administrative Agent (or waived:
its counsel) shall have received (i) a duly executed and completed counterpart of the General fee letter, to be dated as of the Sixth Amendment Effective Date (the “Sixth Amendment Fee Letter”), between the Administrative Agent and the Borrower, that bears the signature of the Borrower and (ii) a duly executed and completed counterpart of the Sixth Amendment Fee Letter that bears the signature of the Administrative Agent;
(d) the Administrative Agent shall have received a counterpart perfection certificate (the “Perfection Certificate”), in form substantially consistent with the perfection certificate delivered in connection with the Closing Date, dated as of the Sixth Amendment Effective Date or as of a recent date (as required under the Fifth Amendment and Limited Waiver to Credit Agreement, dated as of September 2, 2022 (the “Fifth Amendment”));
(e) the Borrower shall have provided to the Administrative Agent Lien searches from the Secretary of State (or comparable state authority) of the jurisdictions of organization of each of the Loan Parties;
(f) Upon and after giving effect to this Amendment, executed and delivered by a duly authorized officer (i) all of the U.S. Borrowerrepresentations and warranties set forth in Section 4 below and in the Amended Credit Agreement will be true and correct, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (viii) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agentand no Default or Event of Default shall exist;
(iig) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% reasonable and documented out of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement NAI-1533756051v20 and (ii) on behalf of itself, its Affiliates and each Lender for the account of each Lender that duly executes this Amendment on or prior to which 9:00 a.m. New York time on November 21, 2022 (or such Loan Party is later date and time as notified by the Borrower in writing to the Lenders through the Administrative Agent), a party or is fee equal to be a party;1.00% of the aggregate outstanding principal amount of the Revolving Commitments and Term Loans held by such Lender on the Sixth Amendment Effective Date; and
(vh) the General The Administrative Agent shall have received evidence all documentation and other information about the Loan Parties as shall have been reasonably satisfactory requested in writing at least five (5) Business Days prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Sixth Amendment Effective Date and has taken such other steps in connection with by the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) required by regulatory authorities under applicable Anti-Money Laundering Laws, including the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% USA PATRIOT Act and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000other “know your customer” rules and regulations.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date first written above (the “First Amendment No. 1 Effective Date”) on which all upon the satisfaction (or waiver in writing by the Agent and Required Purchasers) of the following conditions precedent have been satisfied or waivedprecedent, each in form and substance reasonably satisfactory to, and the satisfaction of, the Agent and each Purchaser:
(ia) the General Administrative Agent shall have received a counterpart fully executed copy of this Amendment, Amendment executed and delivered by a duly authorized officer each of the U.S. BorrowerCredit Parties, each of the other BorrowersPurchasers (constituting Required Purchasers), and the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(b) Receipt by Agent of executed copies of (i) the Heads of Agreement regarding governance matters among Issuer, FF Global Partners LLC and FF Top Holding LLC and (ii) the General Administrative Mutual Release among FF Global Partners LLC, the FFGP Controlled Affiliates party thereto, the Executive Committee Members party thereto, FF Top Holding LLC, Issuer, the FFIE Controlled Affiliates party thereto, Property Solutions Acquisitions Corp., and the Directors party thereto (in each case, as defined therein);
(c) Agent shall have received an a fully executed Acknowledgment copies of support letters from FF Top Holding LLC and Consent, in Season Smart Limited consenting to the form Shareholder Approval on the terms and conditions set forth at in such support letters;
(d) Receipt of all customary resolutions or written consents of the end of Credit Parties’ appropriate governing body approving and authorizing this Amendment;
(e) [reserved];
(f) After giving effect to this Amendment, from each Loan Party signatory thereto;
(iii) subject to the General Administrative Agent Bridge Waivers, no Default or Event of Default shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on occurred and be continuing or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined shall be caused by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid transactions contemplated by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireAmendment; and
(vig) Subject to the General Administrative Agent shall have received evidence reasonably satisfactory to it that Bridge Waivers, the aggregate principal amount representations and warranties contained in the Amended Securities Purchase Agreement and the other Financing Documents are true and correct in all material respects (without duplication of any materiality qualifier) as of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (date hereof, both before and after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% transactions contemplated by the Amended Securities Purchase Agreement and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000other Financing Documents.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent Lender shall have been satisfied or waived:
received (i) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment duly executed by each of the Borrowers and Guarantors; (ii) the Second Amended and Restated Revolver Note, dated as of the date of this Amendment executed by the Borrower; (iii) the Reaffirmation of Guarantees and Reaffirmation of Security Agreements, in the form attached hereto, each executed and delivered by the Guarantors; (iv) a duly authorized certified copy of the resolutions of the Board of Directors of the Borrower and each of the Guarantors, evidencing approval of this Amendment and the other documents and matters contemplated hereby, and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and such other documents, including, but not limited to, a certificate of “good standing” (or its equivalent), certified copies of the articles of incorporation and true and correct copies of the bylaws; (v) a favorable opinion of counsel for the Borrower, in form and substance acceptable to Lender, as to the due execution and delivery by the Borrower and each of the Guarantors of this Amendment and the other documents contemplated hereby and as to such other matters as the Lender may reasonably request; (vi) a signed copy of a certificate of an officer of the U.S. Borrower and each of the Guarantors, in the form and substance acceptable to Lender, who shall certify the names of the officers of the Borrower and the respective Guarantors authorized to sign this Amendment and the other documents or certificates to be delivered pursuant to this Amendment by the Borrower, each of the other BorrowersGuarantors, or any of its respective officers, together with the Majority Lenders and Extending Lenders to the extent required by clause true signatures of such officers (vi) below; provided that any Lender may signify its conclusively rely on such certificate until it shall receive a further certificate of the Secretary or an Assistant Secretary of the Borrower or the respective Guarantor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate); (vii) a certified copy of the written approval and consent of the holders, if any, of any obligations of the Borrower which must consent to this Amendment and the Borrowings under the Agreement and the other Loan Documents, as amended hereby; (viii) Amendment No. 2 to Subordination Agreements, to be signed by instead executing each Affiliate that is a “lender addendum” in a form as provided holder of debt of the Borrower other than the Lender, if any, or unless waived by the Administrative Agent;
Lender; and (iiix) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined payment by the General Administrative Agent in its sole discretion) and (b) all other Borrower of the fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedcosts, including all reasonable out-of-pocket attorney’s fees and expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date documents and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000matters contemplated hereby.
Appears in 1 contract
Samples: Credit Agreement (PBSJ Corp /Fl/)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:(such date, the “Amendment Effective Date”):
(a) (i) the General Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Exchanging Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
(b) the Administrative Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
(c) each of the representations and warranties contained in Section 7 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment Effective Date;
(d) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
(e) the Administrative Agent shall have received a counterpart of this Amendmentcertificate, executed in form and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders substance reasonably acceptable to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) , dated the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection signed by a Responsible Officer of the Borrower Representative (i) confirming compliance with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
conditions set forth in Sections 5(c) and 5(d) hereof, (viii) the General Administrative Agent shall have received evidence reasonably satisfactory to it certifying that the aggregate principal amount of the Tranche A U.S. Incremental Revolving Credit Commitments on the First Amendment Effective Date (after giving effect incurred hereunder are permitted to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders be incurred pursuant to clause (z) of Section 2.6 2.14(a) of the Existing Credit AgreementAgreement and setting forth the information and computations (in sufficient detail) will be not less than $700,000,000.required in order to establish pro forma compliance with the requirements of such clause, (iii) certifying that Orion Engineered Carbons Holdco S.A.S. (“Carbons Holdco”) and
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 2 Effective Date”) on which all of the following conditions precedent have been satisfied are satisfied, or waivedwaived by the Administrative Agent in its sole discretion:
(a) The Administrative Agent shall have received from (i) Lenders constituting the General Required Lenders and (ii) each Loan Party a duly executed counterpart of this Amendment signed on behalf of such party (which may include facsimile or other electronic transmission of a signed signature page of this Amendment).
(b) The Administrative Agent shall have received a counterpart favorable written opinion of (i) Kxxxxxxx & Exxxx LLP, special counsel for the Loan Parties, (ii) Walkers Bermuda, Bermuda counsel for the Loan Parties, and (iii) Cains Advocates Limited, Isle of Man counsel for the Loan Parties, in each case (A) dated the Amendment No. 2 Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(c) The Borrower shall have paid all reasonable fees, expenses and disbursements of Mxxxx & Vxx Xxxxx PLLC, as counsel for the Administrative Agent, incurred in connection with the preparation, negotiation and execution of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Amendment to the extent required by clause (vi) below; provided that any Lender may signify its consent invoiced on or prior to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;date hereof.
(iid) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, in a certificate from a Responsible Officer of the form Borrower certifying as to the matters set forth at the end of this Amendment, from each Loan Party signatory thereto;in Section 2 hereof.
(iiie) the General The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment No. 2 Effective Date and certifying:
(ai) for distribution to each Term Lender which has delivered a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1) if available from an executed counterpart official in such jurisdiction, certified as of this Amendment a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the General Administrative Agent good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on or the Amendment No. 2 Effective Date and at all times since a date prior to the First Amendment Effective Date, an amendment fee equal to 1.00% date of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date resolutions de-scribed in clause (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretioniv) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;below,
(iv) the General Administrative Agent shall have received such certificates that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or other action, incumbency certificates and/or other certificates equivalent governing body) of Responsible Officers of each such Loan Party as (or its managing general partner or managing member) authorizing the General Administrative Agent may reasonably require evidencing execution, delivery and performance of the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents dated as of the Amendment No. 2 Effective Date to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or is to be a party;amended and are in full force and effect on the Amendment No. 2 Effective Date,
(v) as to the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date incumbency and has taken such specimen signature of each officer executing any Loan Document or any other steps document delivered in connection with the redemption herewith on behalf of the 2009 Notes as the General Administrative Agent may reasonably require; andsuch Loan Party,
(vi) as to the General absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party, and
(vii) such other documents as the Administrative Agent and the Lenders on the Amendment No. 2 Effective Date may reasonably request (including tax identification numbers and addresses); provided that, in lieu of delivering the foregoing attachments, each Loan Party may certify that any such attachment that was provided to the Administrative Agent or certified to on the Amendment No. 1 Effective Date has not been in any way modified, rescinded, revoked or amended in whole or in part, in any respect, and is in full force and effect on the date hereof.
(f) The Lenders shall have received evidence reasonably satisfactory a solvency certificate substantially in the form of Exhibit C to it that the aggregate principal amount Credit Agreement and signed by a Financial Officer of the Tranche A U.S. Revolving Credit Commitments Borrower confirming the solvency of the Borrower and its Subsidiaries on the First Amendment Effective Date (a consolidated basis, in each case, after giving effect to this Amendment on the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.Amendment No. 2
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Conditions to Effectiveness of Amendment. This Amendment Amendment, including the amendments set forth in Section 2, shall become effective and the provisions set forth in Sections 1 and 2 shall become operative, and each New Incremental Term Loan Lender shall make New Term Loans in the amount of its respective New Term Loan Commitment, on the date and at the time (the “First Amendment No. 2 Effective DateTime”) on at which all each of the following conditions precedent have been are satisfied or waivedwaived by each applicable party:
(ia) The Administrative Agent shall have received executed signature pages to this Amendment from each Lender party hereto, the General Borrower and each other Loan Party.
(b) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized certificate from an officer or director of the U.S. Borrower, Borrower stating that the other Borrowers, Revolving Facility Agreement shall have become effective pursuant to and in accordance with the Majority Lenders terms and Extending Lenders conditions thereof and Loans (as defined in the Revolving Facility Agreement) shall have been made available to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;Borrower.
(iic) the General Administrative Agent The Incremental Term Lenders party hereto shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment No. 2 Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required Time to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;the extent invoiced at least one Business Day prior to the Amendment No. 2 Effective Time.
(ivd) the General The Administrative Agent shall have received such certificates a certificate of the Secretary or an Assistant Secretary of the Borrower and each Guarantor setting forth (i) resolutions of the its board of directors or other actionappropriate governing body with respect to the authorization of the Borrower or such Guarantor to execute and deliver the Amendment and to enter into the transactions contemplated hereby, incumbency certificates and/or other certificates (ii) the officers of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof Borrower or such Guarantor (y) who are authorized to sign this Amendment and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as a Responsible Officer its representative for the purposes of signing documents and giving notices and other communications in connection with this Amendment and the transactions contemplated hereby, (iii) specimen signatures of such authorized officers, and (iv) the articles or certificate of incorporation and by-laws or other Loan Documents applicable organizational documents of the Borrower and such Guarantor, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to which such Loan Party is a party or is to be a party;the contrary.
(ve) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given a certificate from an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption officer or director of the 2009 Notes Borrower attaching the same (i) certificates of good standing from the applicable Secretary of State (or equivalent) of the State of organization of each Loan Party and (ii) certificate of insurance coverage of the Borrower, in each case, as delivered to the General Administrative Agent may reasonably require; andadministrative agent under the Revolving Facility Agreement.
(vif) The New Incremental Term Lenders shall have received, on behalf of itself, and the General New Incremental Term Lenders, an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Borrower and the Guarantors.
(g) The Administrative Agent shall have received evidence reasonably satisfactory to it a certificate from an authorized officer of the Borrower that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) Merger shall have been consummated or will be not less than $700,000,000.consummated substantially concurrently with the Amendment No. 2
Appears in 1 contract
Samples: Credit Agreement (Forest Oil Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 3 Effective Date”) on which all each of the following conditions precedent have been are satisfied or waivedwaived by each applicable party:
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent signature pages to this Amendment by instead executing a “lender addendum” in a form as provided by from the Administrative AgentLenders, the Borrower and each other Loan Party;
(iib) the General Administrative Agent shall have received an executed Acknowledgment The representations and Consent, in the form set forth at the end warranties of this Amendment, from each Loan Party signatory thereto;
(iii) set forth in the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart Loan Documents are true and correct in all material respects on and as of this Amendment to Effective Date with the General Administrative Agent same effect as though such representations and warranties had been made on or prior to and as of the First Amendment Effective Date, provided that, to the extent that such representations and warranties specifically refer to an amendment fee equal to 1.00% earlier date, they shall be true and correct in all material respects as of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date earlier date;
(it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to c) At the time that the General Administrative Agent of and immediately after giving effect to this Amendment, no Default has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretionoccurred and is continuing;
(d) and (b) all other fees and amounts due and payable on The Borrower shall have paid or prior caused to the First Amendment Effective Date for which invoices have been presented, including be paid all reasonable and documented out-of-pocket costs and expenses incurred by the Administrative Agent and its Affiliates (without duplication) including the reasonable fees, charges and disbursements of counsel) required legal counsel to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireAmendment; and
(vie) The Borrower shall have paid, (i) for the General account of each Lender that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 5:00 p.m. (New York City time) on February 22, 2016, amendment fees in the amount equal to 0.15% of the sum, without duplication, of such Lender’s outstanding Revolving Loans and Revolving Commitments, (ii) for the account of each Lender, all fees accrued under the Credit Agreement in respect of the Terminated Commitments and (ii) for the account of Royal Bank of Canada (or its applicable affiliates), such other fees as shall have received evidence reasonably satisfactory been agreed with Royal Bank of Canada in writing prior to it that the aggregate principal amount of date hereof.
(f) The Borrower shall have prepaid the Tranche A U.S. outstanding Loans and/or Cash Collateralized the outstanding L/C Obligations to the extent the Total Revolving Credit Commitments Outstanding on the First Amendment No. 3 Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than exceeds $700,000,00020,000,000.
Appears in 1 contract
Samples: Credit Agreement (Keyw Holding Corp)
Conditions to Effectiveness of Amendment. This Anything contained in this Amendment to the contrary notwithstanding, the terms and provisions of this Amendment shall only become effective on upon the date (the “First Amendment Effective Date”) on which all satisfaction of the following additional conditions precedent precedent:
(a) Congress shall have been satisfied received an executed original or waivedexecuted original counterparts (as the case may be) of this Amendment together with the following, each of which shall be in form and substance satisfactory to Congress:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLCI Fourth Restated Note;
(ii) certified resolutions of the General Administrative Agent shall have received an executed Acknowledgment Board of Directors of LCI duly authorizing the execution and Consent, in the form set forth at the end delivery of this Amendment, from each Loan Party signatory thereto;Amendment and the instruments and transactions hereunder; and
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment between LPC and Congress with respect to the General Administrative Agent on or prior LPC Financing Agreements and the documents and instruments required thereunder and the satisfaction of all conditions precedent to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on effectiveness thereof (the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and "March 1997 LPC Amendment").
(b) Arrangements satisfactory to Congress shall be made by LPC such that the proceeds of the March 1997 Additional LPC Term Loan (as defined in the March 1997 LPC Amendment) shall be used as required therein, and that, contemporaneously therewith:
(i) CIT shall release all other fees of its liens and amounts due security interests in the assets and payable on or prior properties of LPC which constitute "CIT Collateral" pursuant to the First Amendment Effective Date for which invoices have been presentedSubordination Agreement between CIT and Congress, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentas amended;
(ivii) the General Administrative Agent CIT and Congress shall have received such certificates of resolutions or other actionenter into an agreement, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority in form and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably substance satisfactory to it that Congress, terminating or amending the U.S. Borrower has given an irrevocable call notice Subordination Agreement dated as of January 17, 1996 between CIT and Congress, as amended, to redeem all 2009 Notes outstanding on provide for, among other things, the First Amendment Effective Date and has taken such other steps release referred to in connection with the redemption clause (i) of the 2009 Notes as the General Administrative Agent may reasonably requirethis paragraph 12(b); and
(viiii) the General Administrative Agent LPC shall have received evidence reasonably satisfactory delivered to it that Congress a payoff letter from Chase, setting forth the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 Rochester IRB Balance as of the Existing Credit Agreementdate hereof, and shall have authorized Congress to disburse a portion of the March 1997 Additional LPC Term Loan directly to Chase in payment thereof.
(c) will All representations and warranties contained herein, in the Accounts Agreement and in the other Financing Agreements shall be not less than $700,000,000true and correct in all material respects; and
(d) No Event of Default shall have occurred and no event shall have occurred or condition be existing which, with notice or passage of time or both, would constitute an Event of Default.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waivedare satisfied:
(ia) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by the General Borrower, each Subsidiary Guarantor, the Issuing Bank and each Lender.
(b) The Administrative Agent shall have received reimbursement for all of its reasonable out-of-pocket costs and expenses in accordance with Section 2.4 hereto.
(c) The Administrative Agent shall have received, for its account and on account of each Lender, all fees in connection with this Amendment in accordance with any fee letter or commitment letter, between the Borrower and ING or the Borrower and any Lender.
(d) The Borrower shall have paid to the Administrative Agent and the Lenders all accrued but unpaid interest as of the date hereof, calculated at the rate set forth in the Credit Agreement (for clarity, without giving effect to the Amendment).
(e) The Administrative Agent shall have received a counterpart favorable written opinion (addressed to the Administrative Agent and the Lenders and dated as of the date hereof) of Xxxxx & Xxxxxx, LLP, counsel for the Obligors, in form and substance reasonably acceptable to the Administrative Agent and covering this Amendment and any other matter as the Administrative Agent may reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(f) The Administrative Agent shall have received: (i) a certificate, from the secretary of each Obligor, that there has been no change to the organizational documents of each Obligor delivered as of February 22, 2011, (ii) signature and incumbency certificates of the officers of such Person executing this Amendment, (iii) resolutions of the board of directors or similar governing body of each Obligor approving and authorizing the execution, delivery and performance of this Amendment, executed (iv) a good standing certificate from the applicable Governmental Authority of each Obligor’s jurisdiction of incorporation, organization or formation and delivered by in each jurisdiction in which it is qualified as a duly authorized officer foreign corporation or other entity to do business, each dated a recent date prior to the date hereof, and (v) such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the U.S. BorrowerObligors, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart authorization of this Amendment and any other legal matters relating to the General Obligors, all in form and substance satisfactory to the Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in and its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(a) The Administrative Agent shall have received (i) from each Initial Term Lender with a Tranche B-1 Term Exchange Commitment and from Post-Closing Option Lenders having Additional Tranche B-1 Term Commitments equal in principal amount to the General amount of Initial Term Loans held by Non-Exchanging Term Lenders, (ii) from the Administrative Agent and (iii) from the Borrower and each Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (or a Consent) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received from each Additional Tranche B-1 Term Lender (other than Post-Closing Option Lenders) an executed counterpart to the applicable Joinder Agreement.
(c) The Borrower shall have paid to the Administrative Agent, (i) for the ratable account of each Initial Term Lender, a payment equal to 1% of the aggregate principal amount of Initial Term Loans outstanding immediately prior to the Amendment No. 1 Effective Date, whether or not such Initial Term Lender becomes a Tranche B-1 Term Lender.
(d) The Borrower shall have paid to all Non-Exchanging Term Lenders on the Amendment No. 1 Effective Date, simultaneously with the making of Tranche B-1 Term Loans under the Credit Agreement, all accrued and unpaid interest on their Initial Term Loans to, but not including, the Amendment No. 1 Effective Date.
(e) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders written opinion (addressed to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;, the Lenders and the Issuing Banks and dated the Amendment No. 1 Effective Date) of Xxxxxx & Xxxxxxx LLP, New York counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent. Each of Holdings and the Borrower hereby requests such counsel to deliver such opinions.
(f) The Borrower shall have paid (i) the Joint Bookrunners the fees in the amounts previously agreed in writing to be received on the Amendment No. 1 Effective Date and (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses of the Administrative Agent (including including, without limitation the reasonable fees, charges and disbursements of counselXxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent) required for which invoices have been presented at least three Business Days prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;the Amendment No. 1 Effective Date.
(ivg) At the General time of and immediately after giving effect to this Amendment no Default or Event of Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority (in relation to a Loan Party constituted under German law not older than 14 days and certified by the relevant commercial register) and in relation to a Luxembourg Loan Party an up-to-date excerpt from the Luxembourg Register in respect of the Luxembourg Loan Party as of the date of this Amendment and a certificate from the Luxembourg Register dated as at the date hereof stating that no judicial decision has been registered with the Luxembourg Register by application of article 13, items 2 to 11 and 13 and article 14 of the RCS Law, according to which the Luxembourg Loan Party would be subject to one of the judicial proceedings referred to in these provisions of the RCS Law including in particular, bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de la faillite) and judicial liquidation (liquidation judiciaire) proceedings, (ii) signature and, to the extent such certificates of resolutions or other actionconcept exists, incumbency certificates and/or other certificates of the Responsible Officers of each Loan Party as executing the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such it is a party, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party party, setting out, in respect of each Belgian Loan Party, the reasons why the board of directors of that Belgian Loan Party considered that the entry into this Amendment, is of the benefit to that Loan Party, certified as of the Amendment No. 1 Effective Date by its secretary, an assistant secretary or is a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to be a party;the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(vi) To the General extent required and requested by any Additional Tranche B-1 Term Lenders at least three Business Days prior to the Amendment No. 1 Effective Date, the Administrative Agent shall have received evidence all documentation and other information about the Loan Parties as shall have been requested in writing by such Additional Tranche B-1 Term Lenders that they shall have reasonably satisfactory to it that determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andUSA Patriot Act.
(vij) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Responsible Officer of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect Borrower certifying as to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 accuracy of the Existing Credit Agreementrepresentations set forth in paragraphs (b) will be not less than $700,000,000and (c) of Section 2 hereof.
(k) The Administrative Agent shall have received a Consent to this Amendment from each Revolving Lender.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Third Amendment Effective Date”) on which all upon satisfaction of the following conditions precedent in a manner reasonably satisfactory to the Administrative Agent and the Lenders:
(a) The Administrative Agent shall have been satisfied received executed counterparts of the following documents and instruments or waivedsuch other items as are described below, as the case may be:
(i) this Amendment, duly executed and delivered by the General Initial Borrower, Holdings, the Administrative Agent and each of the Lenders;
(ii) a Consent and Reaffirmation, in the form attached hereto as Annex C, duly executed and delivered by the Initial Borrower, Holdings and each other Credit Party;
(iii) a fee agreement, in form and substance acceptable to the Administrative Agent, duly executed and delivered by the Initial Borrower, Holdings, each other Credit Party and the Affiliate of the Administrative Agent party thereto (the “Amendment Fee Letter”);
(iv) a Notice of Borrowing in respect of the Third Amendment Term Loans;
(v) if requested by the Lender with the Third Amendment TL Commitment, a Third Amendment Term Note evidencing the Third Amendment Term Loans advanced on the Third Amendment Effective Date;
(vi) the Holdings Assumption Agreement, duly executed and delivered by the parties signatory thereto;
(vii) the Benchmark Subordination Agreement, duly executed and delivered by the parties signatory thereto;
(viii) a solvency certificate from the chief executive officer or chief financial officer of Holdings in substantially the form of Exhibit 2.1(c) to the Credit Agreement; and
(ix) a certificate of a Responsible Officer of Crosslayer, Inc., a newly organized subsidiary of Holdings (“Crosslayer”), and each Credit Party (other than the Designated Subsidiaries) dated the Third Amendment Effective Date, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of Crosslayer and each Credit Party (in so-called “long-form” if available), as of a recent date, from the Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of Crosslayer and each Credit Party certified as of a recent date by the Secretary of State of the state of its organization (or, if any such Organizational Document of a Credit Party has not been amended, restated, supplemented, or otherwise modified since the Closing Date, certifying the absence of any amendments, restatements, supplements, or modifications to such Organizational Documents of such Credit Party), (3) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of Crosslayer and each Credit Party authorizing the execution, delivery and performance of this Amendment and each other document or instrument required to be delivered in connection herewith, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (4) a true and complete copy of the Benchmark Purchase Agreement and each other document or instruments to be executed and delivered in connection with the consummation of the Benchmark Acquisition, and (B) as to the incumbency and specimen signature of each officer executing this Amendment or any other document or instrument delivered in connection herewith on behalf of Crosslayer or any Credit Party (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (ix)).
(b) Evidence reasonably satisfactory to the Administrative Agent that, in accordance with the Benchmark Purchase Agreement, the Benchmark Acquisition has been consummated (or will be consummated concurrently) with the funding of the Third Amendment Term Loans.
(c) There shall not exist any judgment, decree or order of any Governmental Authority which would prevent the performance of this Amendment, the Credit Agreement (as modified hereby), the Benchmark Acquisition or the transactions contemplated hereby or declare unlawful this Amendment or the other transactions contemplated hereby.
(d) The Administrative Agent and the Lenders shall have received all documentation and other information requested by the Administrative Agent or any Lender and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
(e) All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to the Administrative Agent. It shall be a condition subsequent to the Third Amendment Effective Date that each of the following conditions subsequent are satisfied (and the failure to satisfy such conditions subsequent shall constitute an immediate Event of Default):
(a) the Administrative Agent shall have received (unless extended by the Administrative Agent in the exercise of its sole discretion):
(i) no later than April 21, 2017:
(A) amended and restated Schedules 3.18, 3.19, 3.25, 5.1, 5.4, 5.5, and 5.9 to the Existing Credit Agreement (giving pro forma effect to the Benchmark Acquisition), each of which shall be acceptable to the Administrative Agent and the Lenders;
(B) a Perfection Certificate, duly executed and delivered by (A) Benchmark, (B) Crosslayer, and (C) each Credit Party;
(C) the Benchmark Assumption Agreement, duly executed and delivered by the parties signatory thereto;
(D) a joinder agreement (in the form attached to the Guaranty and Security Agreement) duly executed and delivered by Benchmark, each other Credit Party thereto and the Administrative Agent;
(E) a joinder agreement (in the form attached to the Guaranty and Security Agreement) duly executed and delivered by Crosslayer, each other Credit Party thereto and the Administrative Agent;
(1) a pledge amendment (in the form attached to the Guaranty and Security Agreement) duly executed by Holdings in respect of the Stock of Benchmark acquired with the proceeds of the Third Amendment Term Loans, (2) all certificates evidencing the Stock of Benchmark acquired in the Benchmark Acquisition, accompanied by instruments of transfer or stock powers undated and endorsed in blank, and (3) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each United States jurisdiction as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to perfect the Liens created, or purported to be created, by Benchmark pursuant to the Collateral Documents;
(G) a certificate of a Responsible Officer of Benchmark, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of Benchmark (in so-called “long-form” if available), as of a recent date, from the Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of Benchmark certified as of a recent date by the Secretary of State of the state of its organization, and (3) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of Benchmark authorizing the execution, delivery and performance of the Benchmark Assumption Agreement, the Credit Agreement (as supplemented thereby) and each other document or instrument required to be delivered in connection herewith, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (B) as to the incumbency and specimen signature of each officer executing the Benchmark Assumption Agreement or any other document or instrument delivered in connection herewith or therewith on behalf of Benchmark (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (F));
(1) a pledge amendment (in the form attached to the Guaranty and Security Agreement) duly executed by Holdings in respect of the Stock of Crosslayer, (2) all certificates evidencing the Stock of Crosslayer, accompanied by instruments of transfer or stock powers undated and endorsed in blank, (3) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each United States jurisdiction as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to perfect the Liens created, or purported to be created, by Crosslayer pursuant to the Collateral Documents, and (4) copies of UCC, United States Patent and Trademark Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name Benchmark, Crosslayer or any Credit Party as debtor and that are filed in those state and county jurisdictions in which any property of Benchmark, Crosslayer or any Credit Party is located and the state and county jurisdictions in which Benchmark, Crosslayer or any Credit Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(ii) no later than April 28, 2017:
(A) for the benefit of the Lender with the Third Amendment TL Commitment, the Administrative Agent shall have received a counterpart number of this Amendmentshares of common Stock of Holdings representing an aggregate of 10.0% (determined on a fully diluted basis after giving effect to the consummation of the Benchmark Acquisition and all Stock and Stock Equivalents (or securities convertible into or exchangeable for Stock and\or Stock Equivalents) issued in connection therewith) of the outstanding Stock and Stock Equivalents of Holdings, executed accompanied by supporting evidence (in form and delivered by a substance reasonably acceptable to the Administrative Agent) that the issuance of such shares have been duly authorized officer and issued in accordance with the Organizational Documents of Holdings and all Requirements of Law; and
(B) the Administrative Agent shall have received (for the benefit of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders applicable Persons described therein) all Stock contemplated to be issued pursuant to the extent required by clause Conditional Termination of Redemption Rights Agreement dated on or about the Third Amendment Effective Date among Holdings and the Lenders party thereto;
(viiii) below; provided that any Lender no later than April [●], 2017:
(A) a legal opinion from K&L Gates LLP, designated transactional counsel to Benchmark and the Credit Parties, and from such other counsel as the Administrative Agent may signify its consent reasonably request, each in form and substance reasonably satisfactory to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iiB) updated certificates evidencing the record ownership of Holdings of all of the issued and outstanding Stock of Benchmark, accompanied by instruments of transfer or stock powers undated and endorsed in blank;
(C) customary insurance certificates and endorsements thereto in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent (on behalf of the Lenders) as an additional insured or loss payee (and mortgagee), as the case may be, under all insurance policies to be maintained with respect to the properties of the Credit Parties (including Benchmark and Crosslayer) forming part of the Collateral; and
(iv) no later than May [●], 2017:
(A) the General Administrative Agent shall have received an executed Acknowledgment Control Agreements in respect of all Deposit Accounts of Benchmark and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent extent not otherwise in effect on or prior to the First Third Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;each Credit Party; and
(ivB) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party documents and instruments as the General Administrative Agent may reasonably require evidencing request to evidence (or further evidence) that the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory has a perfected, first priority Lien in all Collateral, subject only to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Permitted Liens.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waivedwhen and only when:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, each Guarantor and the Lenders, as determined by the General Administrative Agent in its sole discretion) and ;
(b) all other fees the Borrower shall have paid to the Administrative Agent, for the account of each Lender a fee in the amount equal to 0.30% times the positive remainder, if any, of (i) such Lender’s Revolving Loan Commitment Percentage of the Borrowing Base after giving effect to the provisions of Sections 2.1 and amounts 2.2 of this Amendment, minus (ii) such Lender’s Revolving Loan Commitment Percentage of the Borrowing Base immediately prior to giving effect to the provisions of Sections 2.1 and 2.2 of this Amendment (or if a Lender was not party to the Original Agreement prior to the effectiveness of this Amendment, zero), which fee shall be due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentdate hereof;
(ivc) the General representations and warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete in all material respects (or in all respects if such representation or warranty is by its terms already qualified as to materiality) on and as of the Effective Date, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date;
(d) the Administrative Agent shall have received such certificates a certificate of resolutions the secretary, assistant secretary or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized of Borrower certifying as of the Effective Date (i) that there have been no changes to act as a Responsible Officer the Organizational Documents of Borrower since the Closing Date, (ii) the resolutions of Borrower approving this Amendment, and other documents executed in connection with this Amendment and the other Loan Documents related transactions (which certification may, if applicable, be by reference to previously adopted resolutions), and (iii) the signature and incumbency certificates of the officers of Borrower (which such Loan Party is a party or is certification may, if applicable, be by reference to be a partypreviously delivered incumbency certificates);
(ve) the General Administrative Agent shall have received evidence reasonably satisfactory a certificate of the secretary, assistant secretary or other Responsible Officer of each Guarantor certifying as of the Effective Date (i) that there have been no changes to it that the U.S. Borrower has given an irrevocable call notice Organizational Documents of such Guarantor since the Closing Date, (ii) the resolutions of such Guarantor approving this Amendment, and other documents executed in connection with this Amendment and the related transactions (which certification may, if applicable, be by reference to redeem all 2009 Notes outstanding on previously adopted resolutions), and (iii) the First Amendment signature and incumbency certificates of the officers of such Guarantor (which certification may, if applicable, be by reference to previously delivered incumbency certificates);
(f) as of the Effective Date and has taken such other steps in connection with the redemption immediately after, no Default or Event of the 2009 Notes as the General Administrative Agent may reasonably requireDefault shall have occurred and be continuing; and
(vig) the General Administrative Agent shall have received evidence all documents and instruments that Administrative Agent has then reasonably requested, in addition to those described in this Section 3.1 (all such additional documents and instruments shall be reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Administrative Agent in form, substance and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000date).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment ---------------------------------------- shall become effective on the date later to occur of (the “First Amendment Effective Date”x) on which all of the following conditions precedent have been satisfied or waived:
May 15, 2001, and (iy) the General first day when the Administrative Agent shall have received a counterpart all of the following documents: (i) counterparts of this AmendmentAmendment as executed on behalf of Borrower and the Lenders, together with the Acknowledgment and Agreement of Subsidiary Guarantors as executed and delivered by a duly authorized officer on behalf of the U.S. BorrowerSubsidiary Guarantors, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, replacement Syndicated Note in favor of Comerica Bank (the form set forth at "Comerica Replacement -------------------- Note") reflecting the end of increase in its Commitment pursuant to this Amendment, from each Loan Party signatory thereto;
as ---- executed on behalf of Borrower, (iii) a certificate of Borrower signed by the General Administrative Agent shall have received (a) for distribution Secretary or an Assistant Secretary of Borrower, certifying as to each Term Lender which has delivered an executed counterpart the names, true signatures and incumbency of the officer or officers authorized to execute and deliver this Amendment and the Comerica Replacement Note, together with copies of the resolutions adopted by the board of directors of Borrower authorizing the execution, delivery and performance of this Amendment and the Comerica Replacement Note, and any amendments, supplements, or other changes to the General Administrative Agent on certificate of incorporation or prior to the First Amendment Effective Dateby-laws of Borrower since January 31, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders2001, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General favorable opinions of (A) Xxxxxxx X. Xxxxxx, general counsel of Borrower, and (B) Xxxxxx & Bird, LLP, special counsel for Borrower, covering matters relating to Borrower, this Amendment, the Comerica Replacement Note, and such other matters as the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent any Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption request. The later of the 2009 Notes as dates in the General Administrative Agent may reasonably require; and
(vi) preceding sentence shall be the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First "Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.No. 2
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Section 1 of this Amendment shall become effective on as of the date (the “First Fourth Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent (or its counsel) shall have received (i) a counterpart of this Amendment, duly executed and delivered by completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly authorized officer executed and completed counterpart hereof that bears the signature of the U.S. Borrower, Administrative Agent and (iii) a duly executed and completed counterpart hereof that bears the other Borrowers, signature of each of the Majority Lenders and Extending Lenders to party hereto (comprising the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentRequired Lenders);
(iib) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, Confirmation in the form set forth at the end of this Amendment, Annex I hereto from an authorized officer of each Loan Party signatory theretoParty;
(iiic) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment reasonable and documented out of pocket expenses (to the General Administrative Agent on or extent invoiced no later than three Business Days prior to the First Fourth Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement and (ii) on behalf of itself, its Affiliates and each Lender consenting to which this Amendment, all fees owed to it, its Affiliates and/or such Loan Party is a party Lender on or is prior to be a partythe date hereof;
(vd) the General The Administrative Agent shall have received evidence reasonably satisfactory at least two (2) Business Days prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Fourth Amendment Effective Date all documentation and has taken such other steps information about the Loan Parties as shall have been reasonably requested in connection with writing at least five (5) Business Days prior to the redemption of Fourth Amendment Effective Date by the 2009 Notes as the General Administrative Agent may reasonably requirerequired by regulatory authorities under applicable Anti-Money Laundering Laws, including the USA PATRIOT Act and other “know your customer” rules and regulations; and
(vie) the General The Administrative Agent shall have received evidence reasonably the Approved Budget in form and substance satisfactory to it that the aggregate principal amount of Administrative Agent and the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon the earliest date (the “First Amendment Effective Date”) on as of which all of the following conditions precedent have been satisfied occurred (such date, which occurred on May 28, 2009, the “Second Amendment Effective Date”):
(a) the Administrative Agent (or waived:
its counsel) shall have received counterparts of this Amendment executed by Holdings, the Borrower, the Canadian Borrower, the Subsidiary Guarantors, Lenders collectively constituting Required Lenders, including in any event and without limitation, each of the Continuing Revolving Credit Lenders and each of the Additional Revolving Credit Lenders, (b) the Administrative Agent shall have received (i) for the General account of each Term Loan Lender that transmits its executed counterpart of this Amendment, indicating its consent hereto, to the Administrative Agent on or prior to 5:00 PM (New York City time) on May 26, 2009, an amendment fee in an amount equal to 0.10% of the aggregate outstanding principal amount of the Term Loans held by such Lender as of the Second Amendment Effective Date and (ii) for the account of each Continuing Revolving Credit Lender and Additional Revolving Credit Lender that transmits its executed counterpart of this Amendment, indicating its consent hereto, to the Administrative Agent on or prior to 5:00 PM (New York City time) on May 26, 2009, an extension fee in an amount equal to 1.75% of the aggregate principal amount of the Revolving Credit Commitments held by such Lender as of the Second Amendment Effective Date as set forth on Schedule 1 hereto; (c) the Administrative Agent shall have received a counterpart of this Amendmentcertificate from each Credit Party, executed together with any appropriate insertions and delivered by a duly authorized officer of the U.S. Borrowerattachments thereto, the other Borrowers, the Majority Lenders in form and Extending Lenders substance substantially consistent (to the extent required applicable) with that delivered by clause (vi) below; provided that any Lender may signify its consent such Credit Party in connection with the First Amendment or otherwise reasonably acceptable to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
; (iid) the General Administrative Agent shall have received an the executed Acknowledgment and Consentlegal opinions of Xxxxxxx Xxxxxxx & Xxxxxxx LLP, special New York counsel to the Borrower, substantially in the form set forth at of Exhibit A-1 hereto; and (e) all reasonable costs and expenses of the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to and the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) Lenders required to be paid or reimbursed by the Borrower or paid by any Loan Party hereunder Canadian Borrower pursuant to Section 13.5 of the Credit Agreement or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and for which the other Loan Documents to which such Loan Party is a party Borrower or is to be a party;
(v) Canadian Borrower has received an invoice on or before the General Administrative Agent date hereof shall have received evidence reasonably satisfactory to it that been paid (including the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date reasonable fees, expenses and has taken such other steps in connection with the redemption disbursements of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect legal counsel to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:(such date, the “Thirteenth Amendment Effective Date”):
(a) (i) the General Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Exchanging Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
(b) each of the representations and warranties contained in Section 6 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Thirteenth Amendment Effective Date;
(c) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Thirteenth Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
(d) the Administrative Agent shall have received a counterpart of this Amendmentcertificate, executed in form and delivered substance reasonably acceptable to the Administrative Agent, dated the Thirteenth Amendment Effective Date and signed by a duly authorized officer Responsible Officer of the U.S. Borrower, Borrower Representative and confirming compliance with the other Borrowers, conditions set forth in Sections 5(b) and 5(c) hereof;
(e) the Majority Lenders and Extending Lenders Administrative Agent shall have received a solvency certificate dated as of the Thirteenth Amendment Effective Date in substantially the form of Exhibit H of the Amended Credit Agreement from a Financial Officer of the Parent certifying as to the matters set forth therein;
(f) the Administrative Agent shall have received each Revolving Credit Note (to the extent requested at least three Business Days prior to the Thirteenth Amendment Effective Date);
(g) no later than three (3) days in advance of the Thirteenth Amendment Effective Date, the Administrative Agent shall have received all documentation and other information reasonably requested by it in writing at least 10 days in advance of the Thirteenth Amendment Effective Date, which documentation or other information 16 Orion - Thirteenth Amendment to the Credit Agreement is required by clause regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(vih) below; provided that any Lender may signify its consent the Administrative Agent shall have received a certificate dated as of the Thirteenth Amendment Effective Date from a Responsible Officer of the Borrower Representative, certifying compliance with Section 6.13 of the Existing Credit Agreement;
(i) the Administrative Agent shall have received, on behalf of itself and the Lenders on the Thirteenth Amendment Effective Date, a customary written opinion of Xxxxxxxx & Xxxxx LLP, special counsel for Parent, the Borrowers and each other Loan Party (A) dated the Thirteenth Amendment Effective Date, (B) addressed to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent, the Amendment Arranger and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and the Amendment Arranger covering such matters relating to this Amendment;
(j) the Bookrunner and Mandated Lead Arranger shall have received all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Bookrunner and Mandated Lead Arranger, for which invoices have been presented to the Parent at least three Business Days prior to the Thirteenth Amendment Effective Date, on or before the Thirteenth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
(k) the Administrative Agent shall have received:
(i) all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Administrative Agent, for which invoices have been presented to the Parent at least three (3) Business Days prior to the Thirteenth Amendment Effective Date, on or before the Thirteenth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
(ii) for distribution to each Existing Revolving Lender, an amount equal to the General Administrative Agent shall have received an executed Acknowledgment sum of (x) the principal of and Consent, unpaid interest accrued to the Thirteenth Amendment Effective Date on the outstanding Revolving Loans of such Existing Revolving Lender and (y) all fees and other amounts owing to or accrued for the account of such Existing Revolving Lender under the Existing Credit Agreement in respect of such Revolving Loans and such Existing Revolving Lender’s Revolving Credit Commitments (including any amounts under Section 3.06 of the form set forth at the end of this Amendment, from each Loan Party signatory theretoExisting Credit Agreement);
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Incremental Revolving Lender which has that shall have delivered (by facsimile or otherwise) an executed counterpart of this Amendment signature page to the General Administrative Agent a Revolving Lender Consent or a Revolving Credit Facility Joinder (as applicable), and released such signature page, on or prior to the First Amendment Effective Date12:00 p.m. (New York time) on October 6, 2023, a non-refundable special new money fee in an amendment fee amount equal to 1.00(i) 0.70% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined multiplied by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (held by such Incremental Revolving Lender immediately after giving effect to the minimum transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Bookrunner and Mandated Lead Arranger; (ii) 0.60% multiplied by the principal amount of the Revolving Credit Commitment Reduction of 33.33Commitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Mandated Lead Arranger; (iii) 0.50% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 multiplied by the principal amount of the Existing Revolving Credit AgreementCommitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Lead Arranger and (iv) will be not less than $700,000,0000.40% multiplied by the principal amount of the Revolving Credit Commitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is an Arranger.
Appears in 1 contract
Samples: Credit Agreement (Orion S.A.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have has been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of the U.S. Borrower, Credit Parties and all the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment payment of any and Consent, all fees owing in the form set forth at the end of connection with this Amendment, from including an amendment fee payable to each Loan Party signatory theretoLender in the amount of 15 basis points (0.15%) on the amount of such Lender’s Commitment;
(iiic) to the General Administrative extent invoiced, the Lenders, the Agent and the Book-Runner shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart payment or reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable their out-of-pocket expenses (in connection with this Amendment and any other out-of-pocket expenses of the Lenders, the Agent or the Book-Runner required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentcounsel for the Agent;
(ivd) the General Administrative Agent Borrowers shall have received delivered to the Agent such certificates of resolutions or other actionauthorized officers of the Borrowers and the Guarantors, incumbency certificates and/or other certificates of Responsible Officers Governmental Authorities, certified copies of each Loan Party the certificates of incorporation, or formation, bylaws and operating agreements, as applicable, of the Borrowers and the Guarantors (or certified confirmation that no amendments, modifications or revisions have been to those previously certified and delivered to the Agent, as applicable), certified copies of resolutions of the directors, managers or members, as applicable of the Borrowers and the Guarantors and such other documents, instruments and agreements as the General Administrative Agent may reasonably shall require evidencing to evidence the identityvalid corporate existence and authority to conduct business of the Borrowers and the Guarantors and the due authorization, authority execution and capacity delivery of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment any other documents related to this Amendment, and any other legal matters relating to the Borrowers, the Guarantors, any Subsidiary or the other Loan Documents by the Borrowers and/or the Guarantors, all in a form and substance reasonable satisfactory to which such Loan Party is a party or is to be a partythe Agent and its counsel;
(ve) the General Administrative Agent Borrowers shall have received evidence reasonably satisfactory delivered to it that the U.S. Borrower has given an irrevocable call notice Agent favorable opinions of Xxxxxx Xxxxxxxxx LLP, counsel to redeem all 2009 Notes outstanding on the First Amendment Borrowers and the Guarantors, and general counsel to the Parent, each dated as of the Effective Date Date, addressed to the Agent and has taken the Lenders and covering such other steps matters in connection with the redemption of the 2009 Notes foregoing as the General Administrative Agent or the Lenders may reasonably requirerequest, in a form and substance reasonably satisfactory to the Agent and its counsel; and
(vif) the General Administrative Agent Borrowers shall have received evidence delivered to the Agent the definitive documents relating to the Pictou Disposition, the terms of which will be reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Agent and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000its counsel.
Appears in 1 contract
Samples: Credit Agreement (Neenah Paper Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have has been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of the U.S. Borrower, Credit Parties and all the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment payment of any and Consent, all fees owing in the form set forth at the end of connection with this Amendment, from including a commitment increase fee payable to each Loan Party signatory thereto;Lender whose Commitment is being increased pursuant to this Amendment in the amount of 20 basis points (0.2%) on the amount of such increase.
(iiic) to the General Administrative extent invoiced, the Lenders, the Agent and the Book-Runner shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart payment or reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable their out-of-pocket expenses (in connection with this Amendment and any other out-of-pocket expenses of the Lenders, the Agent or the Book-Runner required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentcounsel for the Agent;
(ivd) the General Administrative Agent Borrowers shall have received delivered to the Agent such certificates of resolutions or other actionauthorized officers of the Borrowers and the Guarantors, incumbency certificates and/or other certificates of Responsible Officers Governmental Authorities, certified copies of each Loan Party the certificates of incorporation, formation, bylaws and operating agreements, as applicable, of the Borrowers and the Guarantors (or certified confirmation that no amendments, modifications or revisions have been to those previously certifies and delivered to the Agent, as applicable), certified copies of resolutions of the directors, managers or members, as applicable of the Borrowers and the Guarantors and such other documents, instruments and agreements as the General Administrative Agent may reasonably shall require evidencing to evidence the identityvalid corporate existence and authority to conduct business of the Borrowers and the Guarantors and the due authorization, authority execution and capacity delivery of each Responsible Officer thereof authorized this Amendment any other documents related to act as a Responsible Officer in connection with this Amendment and any other legal matters relating to the Borrowers, the Guarantors, any Subsidiary or the other Loan Documents by the Borrowers and/or the Guarantors, all in a form and substance reasonable satisfactory to which such Loan Party is a party or is to be a partythe Agent and its counsel;
(ve) the General Administrative Agent Borrowers shall have received evidence reasonably satisfactory delivered to it that the U.S. Borrower has given an irrevocable call notice Agent a favorable opinion of Xxxxxx Xxxxxxxxx LLP, counsel to redeem all 2009 Notes outstanding on the First Amendment Borrowers and the Guarantors dated as of the Effective Date Date, addressed to the Agent and has taken the Lenders and covering such other steps matters in connection with the redemption of the 2009 Notes foregoing as the General Administrative Agent or the Lenders may reasonably requirerequest, in a form and substance reasonably satisfactory to the Agent and its counsel; and
(vif) the General Administrative Agent Borrowers shall have received evidence reasonably satisfactory delivered to it that the aggregate principal amount of the Tranche A U.S. Agent new duly completed and executed Revolving Credit Commitments on Notes dated as the First Amendment Effective Date (after giving effect for each Lender who has increased its Commitment pursuant to this Amendment, and in each case payable to the minimum Revolving Credit Commitment Reduction order of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000such Lender.
Appears in 1 contract
Samples: Credit Agreement (Neenah Paper Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (such date, if any, the “First Third Amendment Effective Date”) on which all each of the following conditions precedent have set forth below has been satisfied or waived:
(i) the General satisfied: The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, the Guarantor Subsidiaries, the Term A-2 Loan Lenders and Consenting Lenders constituting the Required Lenders. Delivery of counterparts of Term Loan Notes in favor of each Term A-2 Loan Lender that has requested a Term Loan Note. The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent: a certificate of an officer of the Borrower certifying that attached thereto is a true, as determined correct and complete copy of resolutions duly adopted by the General board of directors (or other governing body) of each Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment; a fully executed and delivered Funding Notice with respect to the Term A-2 Loans to be borrowed on the Third Amendment Effective Date; and opinions of counsel to the Credit Agreement addressed to the Administrative Agent in its sole discretionand the Lenders with respect to the Credit Agreement and the Term A-2 Loans and this Amendment. No Default or Event of Default shall exist on such Third Amendment Effective Date immediately prior to or after giving effect to (i) this Amendment and (bii) the making of the Term A-2 Loans on such date. The representations and warranties in the Credit Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) immediately prior to, and immediately after giving effect to, the incurrence of the Term A-2 Loans, on and as of the Third Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date. The Administrative Agent and the Term A-2 Loan Lenders will 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 at least three (3) Business Days prior to the Third Amendment Effective Date. The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it. All fees and amounts due and payable on or prior pursuant to the First Amendment Effective Date for which invoices engagement letter dated as of June 23, 2022 (the “Engagement Letter”), between the Borrower, Xxxxx Fargo Securities, LLC, JPMorgan Chase Bank, N.A. and Truist Securities, Inc. and the Fee Letter (as defined in the Engagement Letter), in each case, will have been presentedpaid (or will be paid substantially concurrently with the funding of the Term A-2 Loans). All costs and expenses (including reasonable, including all reasonable documented, out-of-pocket legal fees and expenses (including reasonable fees, charges of consultants and disbursements of counselother advisors) required and other compensation payable to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall and Xxxxx Fargo Securities, LLC will have received been paid to the extent then due; provided that an invoice of such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as expenses will have been presented no less than two (2) Business Days prior to the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Third Amendment Effective Date (after giving effect to or otherwise approved by the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Borrower in a funds flow or settlement statement for this Amendment).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(i) the General Administrative Agent shall have received each of the following (the “Effective Date”):
(a) a counterpart of this Amendment, Amendment executed and delivered by a duly authorized officer each of the U.S. Borrower, the other BorrowersSubsidiary Guarantors, the Majority Lenders (including each New Lender) and Extending Lenders the Administrative Agent.
(b) a counterpart of a Note payable to each New Lender if such New Lender requests a Note in connection with this Amendment.
(c) a pro forma Borrowing Base Certificate showing a calculation of the Borrowing Base after giving effect to this Amendment.
(d) such other documents and certificates as the Administrative Agent, any New Lender or its counsel may reasonably request relating to the organization, existence and good standing of Borrower and Subsidiary Guarantors, and the authorization of the transactions contemplated by this Amendment, all in form and substance reasonably satisfactory to the Administrative Agent, such New Lender and its respective counsel.
(e) to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing the Borrower qualifies as a “lender addendumlegal entity customer” in a form as provided by under the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and ConsentBeneficial Ownership Regulation, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or least five days prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed any Lender that the amendment fee is payable to has requested, in a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment written notice to the General Administrative Agent on or Borrower at least 10 days prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority LendersEffective Date, as determined by the General Administrative Agent a Beneficial Ownership Certification in its sole discretion) and (b) all other fees and amounts due and payable on or prior relation to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent Borrower shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Beneficial Ownership Certification.
(f) the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent Lender shall have received evidence all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as reasonably satisfactory requested by the Administrative Agent and each Lender.
(g) the Borrower shall have paid in full to it that the U.S. Borrower has given an irrevocable call notice Administrative Agent for the benefit of the Lenders all fees and expenses related to redeem all 2009 Notes outstanding this Amendment or the Credit Agreement owing on the First Amendment Effective Date and has taken such other steps in connection with under any Loan Document to the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory extent invoiced, including any upfront fee due to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments any Lender on the First Amendment Effective Date (after giving effect to but for the minimum Revolving Credit Commitment Reduction avoidance of 33.33% and doubt any simultaneous addition payment of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will Administrative Agent’s legal fees shall be not less than $700,000,000paid by separate wire transfer in accordance with an invoice provided by Administrative Agent’s counsel).
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Lafayette Square USA, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(a) The Administrative Agent shall have received (i) from each Lender with a Tranche B-3 Exchange Commitment and from each Tranche B-3 Post-Closing Option Lender, (ii) from the General Administrative Agent and (iii) from the Borrower and each Subsidiary Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (or a Tranche B-3 Consent) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment (or a Tranche B-3 Consent).
(b) The Administrative Agent shall have received from each Additional Tranche B-3 Lender an executed counterpart to the applicable Joinder Agreement. The aggregate amount of Additional Tranche B-3 Commitments and Tranche B-3 Exchange Commitments shall equal the aggregate principal amount of Tranche B-1 Loans outstanding immediately prior to the effectiveness of this Amendment.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Lender immediately prior to the effectiveness of this Amendment, simultaneously with the making of Tranche B-3 Loans under the Term Loan Agreement, all accrued and unpaid interest on their Tranche B-1 Loans to, but not including, the Amendment No. 2 Effective Date.
(d) The Administrative Agent shall have received a counterpart of this Amendment, executed customary written opinion (addressed to the Administrative Agent and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders dated the Amendment No. 2 Effective Date) of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, New York counsel for the Credit Parties, in form and substance reasonably satisfactory to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;. The Borrower hereby requests such counsel to deliver such opinions.
(e) The Borrower shall have paid to (i) the Co-Lead Arrangers the fees in the amounts previously agreed in writing to be received on the Amendment No. 2 Effective Date and (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable documented out-of-pocket costs and expenses of the Administrative Agent (including including, without limitation the reasonable fees, charges and disbursements of counselXxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent) required payable pursuant to be reimbursed or paid by any Section 9.05 of the Term Loan Party hereunder or under any other Loan Document;Agreement for which invoices have been presented at least three Business Days prior to the Amendment No. 2 Effective Date.
(ivf) At the General time of and immediately after giving effect to this Amendment no Default or Event of Default shall have occurred and be continuing.
(g) The Administrative Agent shall have received (1) a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such certificates concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official); (2) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Amendment No. 2 Effective Date and certifying: (i) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Amendment No. 2 Effective Date and at all times since a date prior to the date of the resolutions described in clause (ii) below, (ii) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or other actionmanaging general partner, incumbency certificates and/or other certificates managing member or equivalent) of Responsible Officers such Credit Party authorizing the execution, delivery and performance of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party Person is a party and the borrowings hereunder, and that such resolutions have not been modified, rescinded or is amended and are in full force and effect on the Amendment No. 2 Effective Date, (iii) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to be a party;
clause (1) above, (iv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Credit Party, and (v) as to the General absence of any pending proceeding for the dissolution or liquidation of such Credit Party; and (3) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (2) above; provided that the certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party may, in lieu of attaching the documents required pursuant clauses (1) and (2)(i) above, certify that such documents have not been amended, modified or otherwise changed since the Tranche B-2 Incremental Effective Date.
(h) To the extent required and requested in writing by any Additional Tranche B-3 Lender at least three Business Days prior to the Amendment No. 2 Effective Date, the Administrative Agent shall have received evidence reasonably satisfactory to it that all documentation and other information about the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Credit Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andUSA PATRIOT Act.
(vii) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Authorized Officer of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect Borrower certifying as to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 accuracy of the Existing Credit Agreementrepresentations set forth in paragraphs (b) will be not less than $700,000,000and (c) of Section 2 hereof.
Appears in 1 contract
Samples: Term Loan Agreement (EP Energy LLC)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject to the date (the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waivedconditions:
2.1 The Agent’s receipt of the following executed documents, each in form and substance reasonably satisfactory to the Agent:
(a) The Agent’s receipt of this Amendment, duly executed by the Agent, the Lenders, the Issuing Bank and the Borrowers;
(b) The Notes, duly executed by the Borrowers, as requested by the Lenders in connection with this Amendment;
(c) A supplement to Grant of Security Interest in United States Trademarks, duly executed by the Borrower Representative and the Collateral Agent;
(d) The Post-Closing Letter, duly executed by the Borrowers and the Agent; and
(e) A certificate executed by a Responsible Officer of each Loan Party certifying that attached thereto is a true and complete copy of : (i) the General Administrative charter or other similar organizational document and each amendment thereto on file, certified by the Secretary of State of the jurisdiction, (ii) bylaws/operating agreement, as applicable, and all amendments thereto, (iii) a true and complete copy of the resolutions, duly adopted by the Board of Directors of such Loan Party, authorizing the execution, delivery and performance of this Amendment or any other document delivered in connection herewith, (iv) incumbency and specimen signatures of each Responsible Officer executing the Loan Documents, and (v) certificates of good standing of each Loan Party from the Secretary of State of such Loan Party’s jurisdiction of organization.
2.2 The Agent shall have received a counterpart customary legal opinion of this AmendmentXxxxxx & Xxxxxxx LLP, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders special counsel to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;Loan Parties.
(ii) the General Administrative 2.3 The Agent shall have received an a Borrowing Base Certificate dated as of the date hereof executed Acknowledgment and Consentby a Responsible Officer of the Borrower Representative.
2.4 As of the date hereof, after giving effect to all Borrowings made on the date hereof, Excess Availability shall not be less than 30% of the Line Cap.
2.5 The Borrowers shall have paid all fees in connection with the form set forth at the end of this Amendment, from each Loan Party signatory thereto;Fee Letter.
(iii) the General Administrative 2.6 The Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart all documentation and other information about the Borrowers and the Guarantors as required by regulatory authorities under applicable “know your customer”, Anti-Corruption Laws and Anti-Money Laundering Laws and regulations, including without limitation the USA PATRIOT Act.
2.7 The representations and warranties set forth in Section 3 of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent shall be true and correct in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000material respects.
Appears in 1 contract
Samples: Loan Agreement (Ulta Beauty, Inc.)
Conditions to Effectiveness of Amendment. This Section 3 of this Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent (or its counsel) shall have received (i) a counterpart of this Amendment, duly executed and delivered by completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly authorized officer executed and completed counterpart hereof that bears the signature of the U.S. BorrowerAdministrative Agent and (iii) a duly executed and completed counterpart hereof that bears the signature of each of the Lenders, the other Borrowers, the Majority Supplemental Term Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenteach Issuing Bank;
(iib) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, Confirmation in the form set forth at the end of this Amendment, Annex I hereto from an authorized officer of each Loan Party signatory theretoParty;
(iiic) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment reasonable and documented out of pocket expenses (to the General Administrative Agent on or extent invoiced no later than three Business Days prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement, (ii) on behalf of itself, BMO Capital Markets Corp., as lead arranger, and each Lender consenting to which this Amendment, the fees owed to it, BMO Capital Markets Corp. and/or such Loan Party is a party or is Lender pursuant to be a party;
that certain mandate letter, dated as of August 24, 2018, between the Borrower and BMO Capital Markets Corp. and (viii) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem on behalf of each Lender, all 2009 Notes accrued interest on outstanding Loans on the First Amendment Effective Date and, if such Lender is a Revolving Lender, all commitment fees and has taken such other steps in connection with the redemption participation fees payable under Section 2.12 of the 2009 Notes as the General Administrative Agent may reasonably require; andCredit Agreement, whether or not any such amounts are then due and payable;
(vid) No Event of Default or Default shall have occurred and be continuing both before and after giving effect to the General transactions contemplated by this Amendment, including the funding of the Supplemental Term Loans;
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Responsible Officer of the Tranche A U.S. Borrower, certifying on behalf of the Borrower that, (i) after giving effect to this Amendment, to the Supplemental Revolving Commitments, to the Supplemental Term Loans (assuming such Supplemental Term Loans have been fully funded on the First Amendment Effective Date) and to any other Loans or other extensions of credit to be made to the Borrower on the First Amendment Effective Date, the representations and warranties set forth in the Amended Credit Commitments Agreement and the other Loan Documents are true and correct in all material respects (or, to the extent such representations and warranties are qualified by materiality, in all respects) on and as of the First Amendment Effective Date (except to the extent such representation and warranty speaks to an earlier date, in which case such representation and warranty is true and correct in all material respects (or, to the extent such representations and warranties are qualified by materiality, in all respects) on and as of such earlier date), and (ii) no Default or Event of Default has occurred and is continuing on the First Amendment Effective Date (both before and after giving effect to this Amendment, to the minimum Supplemental Revolving Commitments, to the Supplemental Term Loans (assuming such Supplemental Term Loans have been fully funded on the First Amendment Effective Date) and to any other Loans or extensions of credit to be made to the Borrower on the First Amendment Effective Date;
(f) The Administrative Agent shall have received a certificate of each Loan Party, dated as of the First Amendment Effective Date, in form and substance reasonably acceptable to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching a copy of (i) each Organizational Document of each Loan Party, certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing this Amendment, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the Loan Documents to which it is a party, in each case, certified as of the First Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, as applicable;
(g) The Administrative Agent shall have received a certificate of the chief financial officer or treasurer (or other comparable officer) of Holdings certifying the solvency, after giving effect to this Amendment and assuming the Supplemental Term Loans have been fully funded on the First Amendment Effective Date, of Holdings and its Subsidiaries on a consolidated basis in substantially the form of Exhibit E to the Amended Credit Commitment Reduction Agreement;
(h) The Administrative Agent shall have received the executed legal opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the First Amendment Effective Date) of 33.33% (i) Xxxx Xxxxxxx & Xxxxxx LLP, New York counsel to the Loan Parties, and (ii) Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, Georgia counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(i) The Administrative Agent shall have received at least two (2) Business Days prior to the First Amendment Effective Date all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five (5) Business Days prior to the First Amendment Effective Date by the Administrative Agent required by regulatory authorities under applicable Anti-Money Laundering Laws, including the USA PATRIOT Act and other “know your customer” rules and regulations; and
(j) After giving effect to this Amendment, to the Supplemental Revolving Commitments and to the Supplemental Term Loans (assuming such Supplemental Term Loans have been fully funded on the First Amendment Effective Date) and any simultaneous addition of any new U.S. Revolving Lenders pursuant other Loans or credit extensions to be made to the Borrower on the First Amendment Effective Date, the Borrower is in pro forma compliance with the financial covenant set forth in Section 2.6 6.10 of the Existing Amended Credit Agreement) will be not less than $700,000,000Agreement as of the last day of the most recent Test Period.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
