Conditions to Effectiveness of this Amendment. It is understood and agreed that this Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents: (a) executed counterparts to this Amendment from the Borrower and each Lender; (b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement; (c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower; (d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect; (f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and (g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Bristow Group Inc)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Fourth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental LenderLender that executes this Amendment), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Fourth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrowera Responsible Officer, certifying that (wx) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 20142013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and;
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing; and
(h) an Assignment and Assumption with respect to each Assignor, duly executed and delivered by the applicable Assignor, Assignee, Administrative Agent, Issuing Bank and Borrower.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Bristow Group Inc)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective First Amendment Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lenderof the Lenders;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement, as applicable;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth First Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrowera Responsible Officer, certifying that (wx) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 20142011, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Bristow Group Inc)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment Amendment, the extension of the Commitments contemplated hereunder and the other terms contemplated hereby shall not become effective on effective, and the Borrower shall have no rights under this Amendment, until the first date (the “First Amendment Effective Date”) when that each of the following conditions has been met, in a manner reasonably satisfactory to the Administrative Agent or waived by the Administrative Agent in writing:
(a) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates and the Lenders in connection with this Amendment, including without limitation the fees payable Amendment pursuant to the Fifth Amendment that certain Fee Letter (including without limitation fees payable thereunder to dated as of the date hereof between the Borrower and the Administrative Agent for the account of each Incremental Lender)Agent, and (ii) reimbursement or payment of its reasonable all reasonable, out-of-pocket costs and expenses incurred in connection with this Amendment or of the Credit Agreement (Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of King & Spalding Spalding, LLP, as counsel to for the Administrative AgentAgent and its Affiliates, in connection with this Amendment or the Credit Agreement; and
(b) for which invoices (including estimated expenses) The Administrative Agent shall have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) received each of the following documentsfollowing:
(a) i. executed counterparts to this Amendment from the Borrower and each Lender;the Lenders; and
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) ii. a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower substantially in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this the Amendment, certifying that no changes or amendments have been made to the bylaws or articles or certificate of incorporation of Borrower since the Closing Date, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerAmendment;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this (a) This Amendment shall become effective on the date (the “First Amendment Effective Date”) when the on which:
(i) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that duly executed and delivered counterparts of this Amendment becomes effective to that, when taken together, bear the signatures of the Borrower, the Additional Lenders, Extending Revolving Lenders and the Administrative Agent or any and all Guarantors.
(ii) Payment of its affiliates in connection with this Amendment, including without limitation the (a) all fees payable required to be paid pursuant to the Fifth Amendment Fee Engagement Letter dated as of August 6, 2018 and any related fee letter described therein and, to the extent invoiced, reimbursement or other payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating to the transaction contemplated hereby and (including without limitation fees payable thereunder b) an upfront fee (“Upfront Fee”) to the Administrative Agent for the account of each Incremental Lender)all Extending Revolving Lenders and Additional Lenders in an amount equal to 0.25% of the aggregate principal amount of commitments of such Extending Revolving Lenders and Additional Lenders. For the avoidance of doubt, (ii) reimbursement or payment of its reasonable out-of-pocket costs only Extending Revolving Lenders and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel Additional Lenders will be entitled to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and an Upfront Fee.
(iii) each The Administrative Agent shall have received a certificate of a Responsible Officer of the following documentsLoan Parties dated the First Amendment Effective Date and certifying:
(a) executed counterparts to this Amendment from that attached thereto is a true and complete copy of the Borrower and each Lender;
(b) an instrument, executed by each charter and/or other similar organizational document of such Loan Party, pursuant to and each amendment thereto, certified (as of a date reasonably near the First Amendment Effective Date) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreementis organized;
(b) that attached thereto is a true and complete copy of the bylaws and/or operating agreement and/or other similar organizational document of such Loan Party, and each amendment thereto and certifying that such bylaws and/or operating agreement and/or other similar organizational document have not been modified, rescinded or amended and are in full force and effect;
c) that attached thereto is a true and complete copy of a certificate of the Secretary of State or Assistant Secretary other applicable Governmental Authority of the Borrowerjurisdiction in which such Loan Party is organized, attaching dated reasonably near the First Amendment Effective Date, listing the charter or other similar organizational document of such Person and each amendment thereto on file in such office and, if available, certifying that (i) such amendments are the only amendments to such Person’s charter on file in such office, (ii) such Person has paid all franchise taxes to the date of such certificate and (iii) such Person is duly organized and in good standing under the laws of such jurisdiction;
d) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery of the Amendment Agreement to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date and certifying copies that such resolutions have not been modified, rescinded or amended and are in full force and effect;
e) as to the incumbency and specimen signature of its bylaws each Responsible Officer executing the Amendment Agreement (together with a certificate of another officer as to the incumbency and specimen signature of the resolutions Responsible Officer executing the certificate pursuant hereto); and
f) compliance with the requirements set forth in clause (a)(v) of its board this Section 4.
(iv) The Administrative Agent shall have received a customary legal opinion of directors or any duly authorized committee thereofXxxxxx, authorizing Xxxx & Xxxxxxxx LLP, special counsel to the execution, delivery Loan Parties.
(v) (A) Each of the representations and performance warranties set forth Section 3 of this Amendment, and certifying the name, title and true signature of each officer Article III of the Borrower executing the Amendment Credit Agreement and all other Loan Documents shall be true and correct in all material respects on behalf and as of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth First Amendment Effective Date both before and signed by immediately after giving effect to the chief financial officertransactions contemplated hereby, treasurer or controller with the same effect as though made on and as of such date, except to the Borrowerextent such representations and warranties expressly relate to an earlier date, certifying that in which case such representations and warranties shall have been true and correct in all material respects and as of such earlier date, and (wB) no Default or Event of Default exists, (x) had occurred or was continuing as of the Extension Offer Date and no Default or Event of Default has occurred and is continuing as of the First Amendment Effective Date both before and immediately after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoinghereby.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Conditions to Effectiveness of this Amendment. It is understood and agreed that The effectiveness of this Amendment shall become effective on is subject to the satisfaction (or waiver in writing by the Administrative Agent (at the direction of the Required Lenders)) of the following conditions precedent (the date (on which such conditions are satisfied or waived being referred to herein as the “Amendment Effective Date”):
(a) when the Administrative Agent The Merger shall have received (i) such fees as the Borrower has previously agreed to pay on been consummated substantially concurrently with or prior to the date effectiveness of this Amendment, in all material respects in accordance with the terms of the Transaction Agreement, without giving effect to any modifications, amendments, consents or waivers thereto that individually or in the aggregate are materially adverse to the Consenting Lenders or the Administrative Agent without the prior consent of the Required Lenders (which consent shall not be unreasonably withheld, delayed or conditioned);
(b) Immediately prior to and after giving effect to the terms, conditions, and provisions of this Amendment, no Default or Event of Default exists;
(c) The representations and warranties contained in this Amendment becomes effective and the other Loan Documents are correct in all material respects (except any representations and warranties that are qualified by materiality, which shall be true and correct in all respects) with the same effect as though made on and as of the Amendment Effective Date, other than any such representations or warranties that, by their terms, refer to an earlier date, such representations and warranties are true and correct as of such earlier date;
(d) Each of the following documents shall have been received by the Administrative Agent:
(i) This Amendment, duly executed and delivered by each of the Borrowers, the Guarantors, the Consenting Lenders (which together constitute the Required Lenders and, after application of Section 5 above, constitute all of the lenders, under the Existing Credit Agreement) and the Issuing Banks;
(ii) Upon request of any Consenting Lender, the Revolving Loan Notes payable by any Borrower to the order of each such Consenting Lender;
(iii) Certified copies of (A) the Constituent Documents of each Loan Party, (B) the resolutions of the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of each of the Loan Documents to which it is a party, (C) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Loan Documents and (D) (where such concept is legally relevant) a long-form good standing certificate (or its equivalent, if any) for each such Loan Party from its jurisdiction of organization or incorporation;
(iv) A certificate of the secretary, an assistant secretary or a director (or equivalent officer) of each Loan Party certifying the names and true signatures of the officers of each Loan Party authorized to sign this Amendment, the Loan Guaranty, the Notes, the pledge agreements and the other documents to be delivered hereunder;
(v) A favorable opinion of (a) Xxxxxx, Xxxxx & Xxxxxxx LLP and Ogier (Jersey) LLP, counsel to the Loan Parties, and (b) A&L Goodbody LLP, local counsel to the Administrative Agent, in each case, in form and substance reasonably acceptable to the Administrative Agent and Consenting Lenders and covering such customary matters relating hereto as any Consenting Lender, through the Administrative Agent, may reasonably request;
(vi) A certificate of an officer or any authorized person of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant Arcadium to the Fifth effect that (A) the representations and warranties contained in this Amendment Fee Letter and the other Loan Documents are correct (other than any such representations or warranties which, by their terms, refer to a prior date) and (B) no event has occurred and is continuing which constitutes a Default or Event of Default;
(vii) That certain Second Amended and Restated Security Agreement, dated as of the date hereof, xxxx executed and delivered by each Loan Party and the Administrative Agent;
(viii) A completed Perfection Certificate duly executed and delivered by each Loan Party together with all attachments contemplated thereby;
(ix) A pledge agreement governed by Irish law, xxxx executed and delivered by Xxxxxxxx, with respect to its shares in IntermediateCo in favor of the Administrative Agent;
(x) Solely in respect of IntermediateCo and XxxXx, a certificate certifying that entry into the Loan Documents to which it is or will be a party will not breach sections 82 or 239 of the Irish Companies Act 2014; and
(xi) the results of recent customary lien searches, which shall reveal no Liens on any of the assets of any Loan Party except for Liens permitted by Section 6.04(b) of the Amended Credit Agreement;
(e) Each document (including without limitation fees payable thereunder any UCC or equivalent filings) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the account benefit of each Incremental Lenderthe Lenders, a perfected Lien on the Collateral described therein (but only to the extent required therein), prior and superior in right to any other Person (iiother than with respect to Liens expressly permitted by Section 6.04(b) reimbursement of the Amended Credit Agreement), shall be in proper form for filing, registration or payment recordation;
(f) Confirmation that the Borrowers have paid all fees required to be paid on or before the Amendment Effective Date and all expenses of its reasonable out-of-pocket costs the Administrative Agent, the Australian Security Trustee and the Consenting Lenders (including the fees and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented at least one (1) Business Day prior to the Borrower at least two (2) days before the Amendment Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each LenderDate;
(bg) an instrumentSuch certificates, executed by each Loan Partydocuments, pursuant to which such Loan Party reaffirms its obligations under agreements and information respecting any Borrowers as any Consenting Lender through the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
Administrative Agent may reasonably request at least three (c3) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect Business Days prior to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time all documentation and other information relating to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true Parties required by bank regulatory authorities under applicable “know-your-customer” and correct in all material respectsanti-money laundering rules and regulations, except including the Patriot Act and to the extent applicable to any Borrower that such representations and warranties specifically refer to an earlier date and (z) since March 31constitutes a “legal entity customer” under 31 C.F.R. § 1010.230, 2014a certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230, there shall have been no change which has had or could in each case, as reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion requested by any of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the LendersConsenting Lenders at least ten (10) Business Days prior to the Amendment Effective Date, and covering such matters relating to the Borrower, the Amendment a properly completed and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestsigned IRS Form W-9 for each Loan Party; and
(gh) certified copies of all consents, approvals, authorizations, registrations All material governmental and filings and orders required third-party consents or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, approvals necessary in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any material to the continuing operations of the transactions contemplated thereby, Borrowers and such consents, approvals, authorizations, registrations, filings their respective Subsidiaries shall have been obtained and orders shall be in full force and effect effect, and all applicable waiting periods shall have expired, and no investigation expired without any action being taken or inquiry threatened by any governmental authority regarding having appropriate jurisdiction which would restrain or prevent or otherwise impose materially adverse conditions thereon or the Amendment shall be ongoingfinancing thereof.
Appears in 2 contracts
Samples: Credit Agreement (Livent Corp.), Credit Agreement (Arcadium Lithium PLC)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment Amendment, the increase in the Commitments and the other terms contemplated hereby shall not become effective on effective, and the date Borrower shall have no rights under this Amendment, until:
(the “Effective Date”a) when the Administrative Agent shall have received (i) the fees set forth in that Fee Letter dated as of November 12, 2012 among the Borrower, the Administrative Agent and RBS Securities Inc., (ii) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (iiiii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent);
(b) for which invoices (including estimated expenses) the following credit arrangements shall have been presented to finalized and closed by Atmos Energy Marketing, LLC (“AEM”):
(i) the Borrower at least two (2) days before termination of the Effective Date unless otherwise agreed by the Borrower Fifth Amended and Restated Credit Agreement between AEM, BNP Paribas, and the other lenders party thereto; and
(ii) the execution and delivery of the Continuing Letter of Credit Agreement between AEM and BNP Paribas;
(c) the Administrative Agent, and (iii) Agent shall have received each of the following documents:
(ai) executed counterparts to this Amendment from the Borrower and each Lenderthe Required Lenders;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(cii) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its board boards of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, the Amendment and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerAmendment;
(diii) a certified copy copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction jurisdictions of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where in which the failure to so qualify and be so qualified could in good standing would have or would reasonably be expected to have a Material Adverse Effect;; and
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(fiv) a favorable written opinion of Xxxxx Xxxxx L.L.P., inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein herein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on upon satisfaction of each of the date following conditions precedent to the satisfaction of the Administrative Agent:
(the “Effective Date”a) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any counterparts of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed duly executed by the Borrower and the Administrative Agent, the Required Lenders, the Swingline Lender and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Issuing Lender;
(b) an instrumentthe Administrative Agent shall have received counterparts of this Amendment, duly executed by the Borrower and duly acknowledged and agreed to by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementGuarantor;
(c) a certificate of the Secretary or Assistant Secretary of Administrative Agent shall have received from the Borrower, attaching and certifying copies of its bylaws and in immediately available funds, the mandatory principal prepayment required by Section 2.4(b)(vi)(A) of the resolutions of its board of directors or any duly authorized committee thereofCredit Agreement, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer for application in accordance with Section 2.4(b)(xi) of the Borrower executing the Amendment on behalf of the BorrowerCredit Agreement;
(d) a certified copy the Administrative Agent shall have received from the Borrower payment of all costs and fees of the certificate Administrative Agent which are unpaid and invoiced prior to the date of incorporation this Amendment, including those costs and fees related to travel costs and expenses, appraisals of the Borrowerreal estate, together with certificates appraisals of good standing or existencemachinery and equipment, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower environmental reports, title insurance, legal fees and each expenses and other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectout-of-pocket expenses;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there Administrative Agent shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P.received, counsel to the Borrower, addressed in form and substance satisfactory to the Administrative Agent and each its counsel, an amendment to the engagement letter between the Borrower and Huron Consulting (or an amended and restated engagement letter between the Borrower and Huron Consulting) with an increased scope of services reasonably acceptable to the Administrative Agent, including having Huron Consulting assist the Borrower in preparing a revised budget for 2016 and plan for repayment of the LendersObligations; and
(f) the Administrative Agent shall have received, in form and covering such matters relating substance satisfactory to the BorrowerAdministrative Agent and its counsel, the Amendment such other documents, certificates and the transactions contemplated therein instruments as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingrequire.
Appears in 2 contracts
Samples: Credit Agreement (Global Power Equipment Group Inc.), Credit Agreement (Global Power Equipment Group Inc.)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Noteholders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (Company shall have no rights under this Amendment, until the “Effective Date”) when the Administrative Agent Noteholders shall have received (i) such other fees as the Borrower Company has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent Noteholders or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Note Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower Company, each of the Guarantors (other than Guarantors that are Foreign Subsidiaries) and each Lenderthe Noteholders;
(b) executed counterparts to an instrumentIntercreditor Agreement to be executed on the date hereof by KeyBank National Association, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under as the Security AgreementBank Agent and Collateral Agent, the Subsidiary Guaranty Agreement Noteholders, the holders of the Bank Indebtedness and the Pledge Agreement“Obligors” as defined therein;
(c) evidence that each Obligor that has a certificate first-tier Foreign Subsidiary has executed and delivered to the Collateral Agent for the joint benefit of the Secretary or Assistant Secretary Noteholders and the Banks, a Pledge Agreement in form and substance satisfactory to the Noteholders pursuant to which 65% of the Borrower, attaching and certifying copies outstanding shares or other equity interest of its bylaws and such first-tier Foreign Subsidiary has been pledged to the Collateral Agent to secure the Obligations of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerObligors;
(d) a certified copy duly executed officer’s certificate (or comparable domestic or foreign documents) from an officer of each Obligor certifying the names of the certificate officers of incorporation of such Obligor authorized to sign this Amendment, the BorrowerIntercreditor Agreement and the other documents contemplated hereby, together with certificates the true signatures of good standing or existence, as may be available from such officers and certified copies of (i) the Secretary of State resolutions of the jurisdiction board of organization directors (or comparable domestic or foreign documents) of such Obligor evidencing approval of the Borrower execution and each other jurisdiction where delivery of such documents, and (ii) the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectorganizational documents of such Obligor;
(e) a good standing certificate or full force and effect certificate, dated as the Fifth case may be, for each Obligor, issued within ten days prior to the First Amendment Effective Date and signed by the chief financial officer, treasurer Secretary of State in the state or controller of the Borrower, certifying that (w) no Default states where such Obligor is incorporated or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken formed or qualified as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectforeign entity;
(f) a favorable written an opinion of Xxxxx Xxxxx L.L.P.counsel for each Obligor, counsel in form and substance satisfactory to the BorrowerNoteholders and Collateral Agent;
(i) the results of Uniform Commercial Code lien searches, addressed satisfactory to Noteholders, (ii) the results of federal and state tax lien and judicial lien searches, satisfactory to Noteholders, and (iii) Uniform Commercial Code termination statements reflecting termination of all U.C.C. Financing Statements previously filed by any Person and not expressly permitted pursuant to the Administrative Agent Note Agreement, including those naming AmSouth as secured party;
(h) evidence that the Credit Agreement by and each among the Company, certain Subsidiaries, AmSouth Bank, and certain financial institutions party thereto, dated as of May 1, 2003, as amended, shall have been terminated, which termination shall be deemed to have occurred upon payment in full of all of the LendersDebt outstanding thereunder and termination of the commitments established therein;
(i) true and correct copies of the new Credit Agreement with KeyBank as administrative agent, and covering such matters relating any other long-term debt instrument to which any Company is a party (excluding the BorrowerNote Agrements), the Amendment certified by a financial officer as true and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestcomplete; and
(gj) certified copies of all consents, approvals, authorizations, registrations such other items and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry satisfied such other conditions as may be reasonably required by any governmental authority regarding the Amendment shall be ongoingNoteholders.
Appears in 1 contract
Samples: Note Purchase Agreement (Nn Inc)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date hereof when and if (such date being the “Effective Amendment Date”) when the following conditions are satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the Amendment Date (iexcept for the financial statements referred to in clause (v) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective below), in form and substance satisfactory to the Administrative Agent or any and with one copy for each Swing Line Lender, each Fronting Bank and each Lender:
(i) Counterparts of its affiliates in connection with this Amendment, including without limitation duly executed by each of the fees payable Borrowers, the Swing Line Lenders, the Fronting Banks, Lenders constituting Majority Lenders and each New Extension Lender, and all Notes (if any) requested by the Lenders pursuant to Section 2.18(d) of the Fifth Amended Credit Agreement, duly completed and executed by each Borrower and payable to such Lenders;
(ii) Certified copies of (A) the resolutions of the Board of Directors of each Borrower approving this Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for extension of the account Termination Date of each Incremental any Lender), the Amended Credit Agreement, and the other Loan Documents (iias defined in the Amended Credit Agreement) reimbursement or payment of its reasonable out-of-pocket costs being executed and expenses incurred delivered in connection with this Amendment to which such Borrower is, or the Credit Agreement is to be, a party and (B) all documents evidencing any other necessary corporate action with respect to this Amendment (including reasonable feesthe extension of the Termination Date of any Lender), charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative AgentAmended Credit Agreement, and such Loan Documents (as defined in the Amended Credit Agreement);
(iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (A) the names and true signatures of the officers of such Borrower authorized to sign this Amendment and each other Loan Document (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or is to become, a party and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the Organizational Documents of such Borrower, attaching in each case as in effect on such date, and certifying (C) that attached thereto are true and correct copies of its bylaws all governmental and of regulatory authorizations and approvals (including such Borrower’s Approval) required for the resolutions of its board of directors or any duly authorized committee thereof, authorizing the due execution, delivery and performance by such Borrower of this Amendment, the Amended Credit Agreement, and certifying each other Loan Document (as defined in the nameAmended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borroweror is to become, a party;
(div) a certified copy of the A certificate of incorporation an Authorized Officer of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the each Borrower stating that both before and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to this Amendment (including the execution and delivery extension of the Amendment Termination Date of any Lender) (A) no event has occurred and the funding is continuing that constitutes an Event of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, Default or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, Unmatured Default and (yB) all other representations and warranties of each Loan Party set forth made by such Borrower in the Loan Documents Amended Credit Agreement are true and correct in all material respects, except to the extent that for those made specifically as of another date, in which case such representations and warranties specifically refer shall be true as of such other date;
(v) Copies of all the Disclosure Documents (it being agreed that those Disclosure Documents publicly available on the SEC’s XXXXX Database or on FE’s website no later than the Business Day immediately preceding the Amendment Date will be deemed to an earlier date have been delivered under this clause (v));
(vi) An opinion of Xxxx X. Xxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A hereto;
(zvii) since An opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, special counsel for the Borrowers, substantially in the form of Exhibit B hereto;
(viii) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent, substantially in the form of Exhibit C hereto; and
(ix) Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank, any Swing Line Lender or any other Lender may reasonably request, all in form and substance satisfactory to the Administrative Agent, such Fronting Bank, such Swing Line Lender or such other Lender (as the case may be).
(b) The Borrowers shall have paid all of the fees payable in accordance with the 2014 Amendment Fee Letters.
(c) The Administrative Agent shall have received a copy of a letter agreement, dated as of March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P.among the Borrowers, counsel to the Borrower, addressed to the Administrative Agent and each any “Lender” (as defined in the Credit Agreement) party to the Credit Agreement that will not be a Lender under the Amended Credit Agreement, evidencing the termination of the Lenders, and covering “Commitment” (as defined in the Credit Agreement) of such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and“Lender”.
(gd) certified copies Each of all consents, approvals, authorizations, registrations the representations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, warranties in connection with the execution, delivery, performance, validity and enforceability Section 5 of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force true and correct before and after giving effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingto this Amendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the first date (such date, the “Effective Fifth Amendment Closing Date”) when when:
(a) this Amendment shall have been executed and delivered by the Borrower, each Subsidiary Guarantor, each 2024 Term B Lender party hereto, each other Lender party hereto and the Administrative Agent;
(b) the Administrative Agent shall have received all fees and other amounts due and payable to any Person on or prior to the Fifth Amendment Closing Date, including (i) such those fees payable for the account of each 2024 Term B Lender as the Borrower has previously agreed to pay in writing on or prior to the date that this Amendment becomes effective hereof and (ii) to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant extent invoiced prior to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)Closing Date, (ii) reimbursement or payment of its all reasonable and documented out-of-pocket costs expenses of the Administrative Agent and 2024 Term B Lenders (including the reasonable and documented legal fees and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King Xxxxx Xxxx & Spalding Xxxxxxxx LLP, special counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower Xxxxx Fargo and the Administrative Agent), and (iii) in each of case, to the following documents:
(a) executed counterparts extent required to this Amendment from be reimbursed or paid by the Borrower and each Lender;
(b) an instrument, executed by each under any Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementDocument;
(c) a certificate at the time of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of immediately after giving effect to this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, shall have occurred and be continuing on such date;
(xd) after giving effect to the execution and delivery each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in Article V of the Credit Agreement or in any other Loan Documents are Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date hereof with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that any representation and (z) since March 31, 2014, there shall have been no change which has had warranty that is qualified as to “materiality” or could reasonably be expected to have a “Material Adverse Effect” shall be true and correct in all respects);
(e) the Administrative Agent shall have received, at least three business days prior to the Fifth Amendment Closing Date, all documentation and other information related to the Borrower or any Guarantor required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulation including, without limitation, the Patriot Act, in each case to the extent requested by the Administrative Agent from the Borrower in writing at least five business days prior to the Fifth Amendment Closing Date, including, to the extent the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), a certificate regarding beneficial ownership as required by the Beneficial Ownership Regulation with respect to the Borrower;
(f) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower stating that the conditions set forth in clauses (c) and (d) of this Section 2 have been satisfied;
(g) the Administrative Agent shall have received such certificates, copies of Organization Documents of the Loan Parties, resolutions or other action and incumbency certificates of Responsible Officers of 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 party on the Fifth Amendment Closing Date (or, where applicable, a certification that there have been no changes to such certificates, Organization Documents or other action and incumbency certificates of each Loan Party delivered to the Administrative Agent on the Fourth Amendment Effective Date); and
(h) the Administrative Agent shall have received a favorable written opinion of Xxxxxxxx & Xxxxx Xxxxx L.L.P.LLP, special counsel to for the Borrower, Borrower addressed to the Administrative Agent and each of the Lenders, and covering such matters relating Lenders party hereto in a form reasonably satisfactory to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestAgent; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “First Amendment Effective Date”):
(a) when The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of (i) each Loan Party, (ii) each Extending Lender (in each case in its capacity as a Lender under the Existing Credit Agreement (such Extending Lenders constituting all of the Lenders under the Existing Credit Agreement after giving effect to the Assignment)), (iii) each Extending Issuing Lender (in each case in its capacity as an Issuing Lender under the Existing Credit Agreement (such Extending Issuing Lenders constituting all of the Issuing Lenders under the Existing Credit Agreement after giving effect to the Assignment)), (iv) the Exiting Lender, (v) the New Lender and (vi) the Administrative Agent.
(b) The Extending Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel to the Administrative Agent) on or before the First Amendment Effective Date.
(c) The Administrative Agent shall have received following supporting documents with respect to the Borrower and the other Loan Parties: (i) a copy of its certificate or articles of incorporation, formation, organization or certificate of limited partnership (as applicable) certified as of a date reasonably close to the First Amendment Effective Date to be a true and accurate copy by the Secretary of State (or similar governmental authority) of its state of incorporation or formation, (ii) a certificate of that Secretary of State (or similar governmental authority), dated as of a date reasonably close to the First Amendment Effective Date, as to its existence and (if available) good standing, (iii) a certificate of the Secretary of State (or similar governmental authority) of each jurisdiction, other than its state of incorporation or formation, in which it is qualified as a foreign corporation, limited liability company or other entity (as applicable), as to such fees qualification, unless any failure to be so qualified in such jurisdiction could not reasonably be expected to result in a Material Adverse Effect, (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the First Amendment Effective Date; (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Amendment, (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the First Amendment Effective Date, authorizing the execution and delivery by it of this Amendment and other Loan Documents delivered on the First Amendment Effective Date to which it is a party and the performance by it of all its obligations thereunder and (vii) such additional supporting documents and other information with respect to its operations and affairs as the Borrower has previously agreed to pay on Administrative Agent may reasonably request (or prior with respect to the date that this Amendment becomes effective foregoing clauses (i), (iii), (iv) and (v), certification that, except as otherwise indicated therein, there have been no amendments, restatements, supplements or modifications since delivered to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation on the fees payable pursuant to the Fifth Amendment Fee Letter Closing Date).
(including without limitation fees payable thereunder to the d) The Administrative Agent for the account shall have received a favorable legal opinion of each Incremental Lender), (iii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Borrower and its Subsidiaries and (ii) Xxxxx X. Xxxxxxx (or his successor), as General Xxxxxxx of the Borrower. Such legal opinions shall cover such other matters incident to the transactions contemplated by this Amendment as the Administrative AgentAgent may reasonably require.
(e) for which invoices The Administrative Agent shall have received, no later than seven (7) days prior to the First Amendment Effective Date (or such lesser period of time as the Administrative Agent may agree in its sole discretion), delivery of (i) a Compliance Certificate, substantially in the form of Exhibit B to the Existing Credit Agreement, as of February 1, 2024 and (ii) a Borrowing Base Certificate, substantially in the form of Exhibit C to the Existing Credit Agreement, as of February 1, 2024, with customary supporting documentation and supplemental reporting.
(i) The Administrative Agent shall have received, at least five (5) days prior to the First Amendment Effective Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including estimated expensesthe Patriot Act and (ii) have been presented at least five (5) days prior to the First Amendment Effective Date, any Extending Lender that has requested, in a written notice to the Borrower, a Beneficial Ownership Certification in relation to the Borrower at least two shall have received such Beneficial Ownership Certification (2provided that, upon the execution and delivery by such Extending Lender of its signature page to this Amendment, the condition set forth in this clause (ii) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and shall be deemed to be satisfied).
(iiig) (i) (x) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are true and correct in all material respects (except any representations and warranties which are qualified by materiality or reference to Material Adverse Effect, are correct and accurate in all respects, except to ) on and as the extent date hereof as if made on and as the date hereof; provided that if any such representations and warranties specifically refer to an earlier are expressly made only as of a prior date, such representations and warranties are true and correct in all material respects (or all respects, as applicable) as of such prior date and (zy) since March 31no Default or Event of Default has occurred or is continuing on the date hereof or after giving effect to this Amendment (including the Extension) and (ii) the Administrative Agent shall have received a certificate, 2014dated as of the First Amendment Effective Date and signed by a Responsible Officer of the Borrower certifying as to the foregoing.
(h) No action, there suit or Proceeding before any arbitrator or any Governmental Authority shall have been commenced, no investigation by any Governmental Authority shall have been commenced and no action, suit, Proceeding or investigation by any Governmental Authority shall have been threatened (in writing), against the Borrower or any Subsidiary of the Borrower or any of the officers, directors or managers of the Borrower or any Subsidiary of the Borrower, seeking to restrain, prevent or change which the transactions contemplated by this Amendment in whole or in part or questioning the validity or legality of the transactions contemplated by this Amendment or seeking damages in connection with such transactions.
(i) All governmental and third party consents, licenses and approvals necessary or, in the discretion of the Administrative Agent, advisable in accordance with the transactions contemplated hereby and the continuing operations of the Borrower and its Subsidiaries (including shareholder approvals, if any) shall have been obtained on reasonably satisfactory terms and be in full force and effect.
(j) The Administrative Agent shall have received a duly executed Solvency Certificate.
(k) There shall not have occurred any event, condition, situation or status since September 30, 2023 that has had or could reasonably be expected to have result in a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to material adverse change in the Borrower, addressed to the Administrative Agent and each consolidated financial condition or business or operations of the Lenders, Borrower and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingits Restricted Subsidiaries.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date Borrower shall have no rights under this Amendment, unless and until:
(the “Effective Date”i) when the Administrative Agent shall have received payment of:
(ia) amendment fees in an amount equal to 1.00% of the aggregate principal amount of the Senior Revolving Commitments (as defined in the Existing Credit Agreement) of the Lenders executing this Amendment (prior to giving effect to this Amendment), to be allocated ratably among such Lenders based upon such Senior Revolving Commitments,
(b) such other fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation ,
(c) all unpaid commitment fees and letter of credit fees accrued through the fees payable Fourth Amendment Effective Date pursuant to Section 2.12(b) and (c) of the Fifth Existing Credit Agreement and all unpaid interest on the Loans accrued through the Fourth Amendment Fee Letter Effective Date pursuant to Section 2.11 of the Existing Credit Agreement, in each case whether or not then due and payable,
(including without limitation fees payable thereunder to the Administrative Agent d) for the account of each Incremental Lender that has provided notice of the amount that it is entitled to receive pursuant to Section 2.17 of the Credit Agreement no later than two (2) Business Days prior to the Fourth Amendment Effective Date (it being understood that the failure by any Lender to deliver such notice shall not extinguish such Lender’s right to indemnification under Section 2.17 of the Credit Agreement), any amounts owed to such Lender under Section 2.17 of the Credit Agreement as a result of the transactions contemplated by this Amendment, and
(iie) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent); and
(ii) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) Agent shall have received each of the following documentsfollowing:
(a) executed counterparts to this Amendment from signed by the Borrower Borrower, each of the Guarantors and each Lenderthe Lenders;
(b) an instrument, executed by each Loan Party, pursuant a favorable written opinion of counsel to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement Borrower and the Pledge AgreementGuarantors, addressed to the Administrative Agent and Lenders, and covering such matters relating to this Amendment and the transactions contemplated therein as the Administrative Agent and the Lenders shall reasonably request;
(c) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower and each Guarantor, attaching and certifying copies of its bylaws and of the resolutions of its board boards of directors or any duly authorized committee thereofcomparable authorization, authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title and true signature of each officer of the Borrower or the Guarantor, as the case may be, executing the Amendment on behalf Amendment, confirming that, except as set forth in such certificate, no changes have occurred to the articles of incorporation or bylaws of the Borrower;
(d) a certified copy Borrower nor to the articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents or bylaws or partnership agreement or limited liability company agreement, or comparable organizational documents of the certificate of incorporation of the BorrowerGuarantors, together with certificates of good standing or existence, as may be available available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestGuarantor; and
(gd) certified copies evidence, satisfactory to the Administrative Agent, that the Treasury Secured Revolving Credit Agreement, dated as of all consentsSeptember 29, approvals2008, authorizationsby and among Borrower, registrations Lenders and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated therebyAdministrative Agent, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect all commitments to extend credit thereunder have been terminated and all applicable waiting periods shall amounts outstanding thereunder have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingbeen paid.
Appears in 1 contract
Samples: Revolving Credit Agreement (NGP Capital Resources Co)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date (the “Amendment No. 1 Effective Date”) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective No. 1 Effective Date each of the following, each dated the Amendment No. 1 Effective Date unless otherwise indicated or agreed to by the Administrative Agent and in form and substance satisfactory to the Administrative Agent:
(i) Lender Addendums in respect of the Amendment duly executed and delivered by each of the Borrower, the Administrative Agent and the Required Lenders under the Credit Agreement;
(ii) the Borrower shall have acquired the Westin Atlanta Airport Hotel in accordance with the terms of the Credit Agreement;
(iii) (A) a favorable written opinion of DxXxxxx, Diamond & Ash, special counsel for the Borrower, the Parent, and their Subsidiaries, in a form reasonably acceptable to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter and (including without limitation fees payable thereunder to B) such other legal opinions as the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lendermay reasonably request;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(civ) a certificate of the Secretary or an Assistant Secretary of the Borrower, attaching and Parent on behalf of the Borrower certifying copies of its bylaws and of (A) the resolutions of its board the Board of directors Directors or any duly authorized committee thereof, the members of the Parent and such other Persons approving and authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title other documents required hereunder to be executed and true signature of each officer delivered and (B) that there have been no changes in the organizational documents of the Parent, the Borrower executing or any such other Persons previously delivered to the Amendment Administrative Agent on behalf of the Borrower;
Effective Date (d) or if there has been such a change, attaching a certified copy thereof); and
(v) a certificate of the certificate of incorporation Parent’s chief financial officer as to the Solvency of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower Parent and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) its Subsidiaries after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, transactions contemplated hereby.
(yb) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there There shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed paid to the Administrative Agent Agent, for the account of itself and each of the Lenders, as applicable, all fees and covering such matters relating to the Borrower, expenses (including reasonable fees and expenses of counsel) due and payable on or before the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.No. 1
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective, and the Broker/Dealer shall have no rights under this Amendment, until the Trinity Amendment shall become effective on substantially contemporaneously with the date (the “Effective Date”) when effectiveness of this Amendment and the Administrative Agent shall have received (i) such fees as the Borrower Broker/Dealer has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or Agent, any of its affiliates or the Lenders in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before extent invoiced prior to the Effective Date unless otherwise agreed by the Borrower and the Administrative Agentdate hereof, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower Broker/Dealer and the Lenders;
(b) amended and restated (if applicable) Revolving Notes in the form attached hereto as Exhibit B executed by the Broker/Dealer in favor of each Lender;
(bc) an instrumentsuch certificates of resolutions or other action, executed by incumbency certificates and/or other certificates of Responsible Officers of the Broker/Dealer as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Party, pursuant Documents to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) Broker/Dealer is a certificate of the Secretary party or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borroweris to be a party;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, (addressed to the Administrative Agent and each the Lenders and dated the Effective Date) of Weil, Gotshal & Xxxxxx LLP, New York counsel and/or in-house counsel to the Lenders, and Broker/Dealer covering such other matters relating to the BorrowerBroker/Dealer, the this Amendment and or the transactions contemplated therein hereby as the Administrative Agent or the Required Lenders shall reasonably request; and
(ge) certified copies executed counterparts from Trinity and Parent to an amendment to that certain Guaranty Agreement, dated as of all consentsMarch 3, approvals2014, authorizationsamong Parent, registrations Trinity, certain other subsidiaries of the Parent party thereto as guarantors and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Partythe Administrative Agent, in connection with form and substance reasonably satisfactory to the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAdministrative Agent.
Appears in 1 contract
Samples: Revolving Note and Cash Subordination Agreement (Willis Group Holdings PLC)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documentsfollowing:
(a) executed counterparts to this Amendment from Ethyl, New Borrower, each of the Borrower Guarantors and each Lenderthe Lenders;
(b) an instrument, The Ethyl Guaranty duly executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementEthyl;
(c) A Joinder Agreement to the Security Agreement duly executed by New Borrower;
(d) Copies of the Organizational Documents of each of Ethyl and New Borrower, certified by the Secretary of State (or foreign equivalent) of its jurisdiction of organization or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of the applicable Loan Party, together with a good standing certificate from the Secretary of State of its jurisdiction of organization and each other state in which such Person is qualified to do business and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of each of such jurisdictions, each dated a recent date prior to the date hereof;
(e) Resolutions of the Secretary or Assistant Secretary Governing Body of the Borrower, attaching New Borrower and certifying copies of its bylaws Ethyl approving and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this AmendmentAmendment and the other Loan Documents to which it is a party, and certifying certified by the name, title and true signature of each secretary or similar officer of the Borrower executing the Amendment on behalf of the Borrowersuch Person as being in full force and effect without modification or amendment;
(df) a certified copy Signature and incumbency certificates of the certificate officers of incorporation of such Person executing the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower Loan Documents to which it is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectparty;
(eg) a certificateA duly executed Officer’s Certificate of New Borrower together with appropriate attachments, dated the Fifth Amendment Effective Date and signed by the chief financial officerin each case demonstrating that, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery consummation of the Amendment transactions contemplated hereby, New Borrower and the funding of the Term Loans Guarantors on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, consolidated basis will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse EffectSolvent;
(fh) a favorable written opinion Evidence that New Borrower shall have assumed all rights, obligations and liabilities of Xxxxx Xxxxx L.L.P.Ethyl with respect to the Senior Notes and the Senior Notes Indenture, and New Borrower shall have delivered to Administrative Agent complete, correct and conformed copies of the Senior Note Documents and all assumption documents related thereto, all in form and substance reasonably satisfactory to Administrative Agent, together with an Officer’s Certificate of New Borrower certifying to the foregoing. In addition, all opinions by counsel to New Borrower or any of its Subsidiaries (and, if requested by Administrative Agent, any certificates and letters) delivered in connection with the Borrower, assumption of the Senior Note Documents shall be addressed to the Administrative Agent and Lenders or accompanied by a written authorization from each Person delivering such an opinion stating that Administrative Agent and Lenders may rely on such opinion as though it were addressed to them;
(i) originally executed copies of the Lendersone or more favorable written opinions of (i) Xxxxxx X. Xxxxxxx, general counsel for Loan Parties and covering such matters (ii) Hunton & Xxxxxxxx LLP, special counsel for Loan Parties, in each case in form and substance reasonably satisfactory to Administrative Agent and its counsel, relating to the Borrower, the enforceability of this Amendment and the transactions contemplated therein such other matters as the Administrative Agent or the Required acting on behalf of Lenders shall may reasonably request; and
(gj) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingSuch other documents as Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket the costs and expenses of the Administrative Agent incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower Borrower, each of the Subsidiary Loan Parties and each LenderLenders constituting at least the Required Lenders;
(b) an instrumentexecuted counterparts to the Amendment to the Guaranty Agreement from the Borrower, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, of the Subsidiary Guaranty Agreement Loan Parties and the Pledge AgreementAdministrative Agent in the form of Schedule I;
(c) a certificate of the Secretary or Assistant Secretary of the Borrowereach Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this the Amendment, and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Amendment on behalf and confirming that the articles of incorporation and bylaws have not changed since the BorrowerClosing Date;
(d) a certified copy favorable written opinion of Xxxxxx X. Xxxxxx, General Counsel to the Loan Parties, addressed to the Administrative Agent, the Issuing Bank and each of the certificate of incorporation of Lenders, and covering such matters relating to the BorrowerLoan Parties, together with the Amendment and the transactions contemplated herein as the Administrative Agent shall reasonably request;
(e) certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth (other than those identified in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestSection 5 below); and
(gf) certified copies of all consents, approvals, authorizations, registrations and filings and orders orders, if any, required or advisable to be made or obtained under any Requirement of Law, or by any material Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated therebyhereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment Governmental Authority related thereto shall be ongoing.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the Borrowers shall have no rights under this Amendment, until the date the following conditions are satisfied or waived in writing (the “Amendment Effective Date”):
(a) when The Administrative Agent (or its counsel) shall have received the following, each in form and substance satisfactory to the Administrative Agent:
i. a counterpart of this Amendment signed by or on behalf of the Borrowers, the Guarantors, the Administrative Agent shall have received and all Lenders (iincluding the New Lenders) or written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission of a signed signature page of this Amendment) that such fees as party has signed a counterpart of this Amendment;
ii. Assignment and Acceptance Agreements duly executed by each Lender party to the Borrower has previously agreed to pay on or Credit Agreement in effect prior to the date hereof that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with is not executing and delivering this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment assigning all of its reasonable out-of-pocket costs Commitments, Loans and expenses incurred in connection with Bonds to SunTrust Bank, to be reallocated hereunder upon this Amendment or the Credit Agreement (including reasonable feesbecoming effective, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise acknowledged and agreed by the Borrower Borrowers and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) iii. a certificate of the Secretary or Assistant Secretary of the Borrowereach Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its board of directors directors, or any duly authorized committee thereofpartnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of this Amendment, the Amendment and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Amendment on behalf Amendment;
iv. certified copies of the Borrower;
(d) a certified copy of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates a certificate of good standing or existence, as may be available from the Secretary of State (or equivalent) of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectsuch Loan Party;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) v. a favorable written opinion of Xxxxx Xxxxx L.L.P.White & Case LLP, primary counsel to the BorrowerLoan Parties, a favorable written opinion of Jxxxx Xxxxxx LLP, bond counsel to the Loan Parties, and a favorable written opinion of MxXxxxxx & English, LLP, bond counsel to the Loan Parties, in each case addressed to the Administrative Agent Agent, Issuing Banks and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and;
vi. duly executed supplements to the Bond Indentures substantially in the form set forth on Exhibit A attached hereto (g) the “Bond Indenture Supplements”), together with copies of all documents, resolutions, consents, opinions and other agreements required thereunder;
vii. duly executed waiver and consents to the Bond Indenture Supplements substantially in the form set forth on Exhibit B attached hereto (the “Waiver and Consents”);
viii. receipt by the Administrative Agent and Bond Purchasers of executed Bonds issued in the names of the Bond Purchasers in the increments set forth on Schedule III which Bonds shall have been authenticated by the applicable Bond Trustees and delivered to the Bond Purchasers (and all conditions set forth in the Bond Indenture Supplements and other Bond Documents with respect thereto shall have been satisfied in all respects), in each case, in form and substance satisfactory to the Administrative Agent and certified by a Responsible Officer of the US Borrower;
ix. certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment the Loan Documents, the Bond Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredexpired or been terminated, and no investigation or inquiry by any governmental authority Governmental Authority regarding the Amendment Commitments or any transaction being financed with the proceeds thereof shall be ongoing, or certification that no such consents, approvals, authorizations, registrations and filings and orders are required;
x. if requested by any Lender in writing at least five (5) Business Days prior to the Amendment Effective Date, a promissory note in form and substance reasonably satisfactory to the Administrative Agent evidencing the applicable Revolving Commitment of such Lender and the applicable Loans made by such Lender to the Borrowers, such promissory note to be payable to the order of such Lender; provided that a PDF of such promissory note shall suffice for satisfying this condition for purposes of the Amendment Effective Date, with original copies to be provided thereafter; and
xi. all documentation and other information that the Administrative Agent reasonably requests in writing at least five (5) days prior to the Amendment Effective Date in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
(i) No Default or Event of Default shall exist under any of the Loan Documents or the Bond Documents, (ii) all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct, (iii) since December 31, 2017, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect and (iv) immediately before and after giving pro forma effect to the Amendment, the Borrowers shall be in compliance with Section 8.1 of the Credit Agreement and Sections 10.10(a) and (c) of the Note Purchase Agreement, dated May 8, 2015, by US Borrower as issuer, in each case, as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered.
(c) The Administrative Agent shall have received a copy of each of the notices sent to the then owners of the Bonds regarding mandatory tender at least seven (7) days prior to the Amendment Effective Date.
(d) The Administrative Agent and the Coordinating Lead Arrangers shall have received payment of all fees due and payable on the Amendment Effective Date, together with reimbursement or payment of its costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent).
(e) At least five (5) days prior to the Amendment Effective Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates Affiliates or the Lenders in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable and documented out-of-pocket costs and expenses incurred in connection with this Amendment or the Amended Credit Agreement (including reasonable fees, charges and disbursements of King Xxxxxx & Spalding Bird LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iii) each of the following documents:documents (the “Second Amendment Effective Date”):
(a) executed counterparts to this Amendment (which may include telecopy or other electronic submission of signed signature pages) from the Borrower Borrower, Parent, the other Loan Parties, each of the Lenders (including, for the avoidance of the doubt, the Increasing Lenders) and each Lenderthe Administrative Agent;
(b) an instrumentat the request of any Lender providing a Second Amendment Revolving Commitment Increase, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreementpromissory notes (or applicable replacements thereof);
(c) a certificate of the Secretary or Assistant Secretary (or, in the case of UK Loan Parties, an authorized signatory) of each Loan Party in the Borrowerform of Exhibit 3.1(b)(ii) attached to the Existing Credit Agreement with such amendments as the Administrative Agent may agree, (i) attaching and certifying copies of (A) its bylaws or memorandum and articles of association or partnership agreement or limited liability company agreement or other similar agreement or resolution or document, and (B) the resolutions of its such Loan Party’s board of directors or any duly authorized committee thereofother equivalent governing body and shareholders (if required) (or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of this Amendment, Amendment (if applicable)) and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Amendment on behalf of the BorrowerLoan Documents to which it is a party;
(d) a certified copy copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together (except with respect to UK Loan Parties) with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party and in the Borrower and each other jurisdiction where case of the Borrower, a certificate from the Secretary of State of New York that the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectcorporation;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of (i) Xxxxxxx, Swaine & Xxxxx Xxxxx L.L.P.LLP, special New York counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, this Amendment, the Amendment other Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (ii) Xxxxxxxxx and May, special English counsel to the Borrower and each UK Loan Party, addressed to the Administrative Agent and each of the Lenders, and covering such English law matters relating to the capacity of, and due execution by, the Loan Parties, in respect of this Amendment, the other Loan Documents and the transactions contemplated therein as the Administrative Agent or the Lenders shall reasonably request and (iii) Xxxxxx & Bird (City) LLP, special English counsel to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the enforceability of the UK Law Security Documents;
(f) copies of favorable UCC (or applicable foreign law), tax, judgment lien and intellectual property search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties as requested by the Administrative Agent;
(g) a certificate from a Responsible Officer of the Borrower certifying that, on the date hereof and immediately after giving effect to the transactions contemplated herein, no Default or Event of Default exists or is continuing, all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects) except to the extent that any such representation or warranty specifically refers to an earlier date, in which case it is true and correct in all material respects as of such earlier date (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects as of such earlier date), and since March 31, 2022, there has been no change with respect to the Borrower and its Subsidiaries which has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) duly executed copies of (i) that certain Supplemental Debenture dated as of the date hereof by and among the UK Loan Parties and Administrative Agent and (ii) that certain Supplemental Charge Over Shares dated as of the date hereof by and between Borrower and Administrative Agent;
(i) duly executed copies of any notices required to be served by any UK Loan Party in connection with the Supplemental Debenture on the date thereof;
(j) a duly executed Notice of Revolving Borrowing;
(k) all documentation and other information reasonably requested by the Administrative Agent at least 10 Business Days prior to the Second Amendment Effective Date and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower;
(l) to the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, a duly executed Copyright Security Agreement to cause all Material Music Copyrights set forth in the Schedule 4.22 of the Existing Credit Agreement that was most recently delivered to the Administrative Agent prior to the Second Amendment Effective Date, to be subject to a first priority perfected Lien in favor of the Administrative Agent; and
(gm) certified copies of all consentssuch other documents, approvalsinstruments, authorizations, registrations certificates and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with consents as the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAdministrative Agent may reasonably request.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date Borrowers shall have no rights under this Amendment, until:
(the “Effective Date”e) when the Administrative Agent shall have received executed counterparts to this Fourth Amendment from the Borrowers, the Lenders, the Swingline Lender and the Issuing Bank;
(if) the Administrative Agent shall have received a duly executed Revolving Loan Note replacing the existing Revolving Loan Note in the full amount of the Revolving Loan Commitments after giving effect to this Amendment;
(g) the Administrative Agent shall have received a duly completed and executed Secretary Certificate, including a certificate of incumbency with respect to each Authorized Signatory of the Borrowers, together with appropriate attachments which shall include, without limitation, the following: (A) the certificate of incorporation of the Borrowers certified as of a recent date to be true, complete and correct by the Secretary of State of the State of each Borrower’s incorporation, (B) a true, complete and correct copy of the by-laws of each Borrower, (C) a true, complete and correct copy of the resolutions of each Borrower authorizing the execution, delivery and performance by such fees Borrower of this Amendment, and (D) certificates of good standing from the State of incorporation of each Borrower and each other jurisdiction where such Borrower is required to be qualified to do business as a foreign corporation and a failure to be so qualified could reasonably be expected to have a Materially Adverse Effect;
(h) the Borrower has previously agreed to pay on or prior Administrative Agent shall have received a favorable written opinion of counsel to the date that this Borrowers, addressed to the Administrative Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the Borrowers, the Amendment becomes effective to and the transactions contemplated herein as the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter Lenders shall reasonably request;
(including without limitation fees payable thereunder to i) the Administrative Agent for the account of each Incremental Lender), (ii) shall have received reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement to the extent required under Section 11.2 of the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except Agent to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestinvoiced); and
(gj) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods Administrative Agent shall have expired, and no investigation or inquiry received a letter designating the Principal Disbursement Account executed by any governmental authority regarding the Amendment shall be ongoingAdministrative Borrower.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Participants hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when the Administrative Agent Sponsor shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with no rights under this Amendment, including without limitation until the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) Servicer shall have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documentsreceived:
(ai) executed counterparts to this Amendment from the Borrower Sponsor, each of the Guarantors and each Lenderthe Participants;
(bii) an instrument, a duly executed by each Loan Party, pursuant amendment to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Servicing Agreement;
(ciii) a favorable written opinion of Xxxxxxxxxx Xxxxxxxx, LLP, counsel to the Sponsor and each Guarantor, addressed to the Servicer and the Participants, and covering such matters relating to this Amendment and the transactions contemplated therein as the Servicer and the Participants shall reasonably request;
(iv) a certificate of the Secretary or Assistant Secretary of the BorrowerSponsor and each Guarantor, attaching and certifying copies of its bylaws and of the resolutions of its board boards of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title and true signature of each officer of the Borrower Sponsor or the Guarantor, as the case may be, executing the Amendment on behalf Amendment, together with certified copies of the Borrower;
(d) a certified copy articles of incorporation or other charter documents of the certificate of incorporation of the BorrowerSponsor and each Guarantor, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization incorporation of the Borrower Sponsor and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectGuarantors;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(gv) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of the Sponsor and each Loan PartyGuarantor, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated therebyhereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired; and
(vi) reimbursement or payment of its reasonable costs and expenses incurred in connection with this Amendment (including reasonable fees, charges and no investigation or inquiry by disbursements of King & Spalding LLP, counsel to the Servicer) and any governmental authority regarding the Amendment shall be ongoingfees due and payable in connection herewith.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date (of this Amendment first set forth above provided, and at such time, that the “Effective Date”) when the Administrative Agent following agreements, documents and other items shall have received (i) such fees as the Borrower has previously agreed to pay on or prior been executed and delivered to the date that this Amendment becomes effective Lender by the party indicated, each of which agreements, documents and other items shall be in form and substance acceptable to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) The Borrower shall have executed counterparts and delivered to the Lender this Amendment from the Borrower and each Lender;Amendment.
(b) an instrument, The Borrower shall have executed by each and delivered to the Lender the Third Amended and Restated Second Supplement to Master Loan Party, pursuant to which such Agreement (Term Revolving Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;Revolving Loan) of even date herewith.
(c) a certificate The Borrower shall have executed and delivered to the Lender the Revolving Note in the original principal amount of the Secretary or Assistant Secretary $50,000,000.00 of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;even date herewith.
(d) a certified copy The Borrower shall have executed and delivered to the Lender the Fifth Amended and Restated Mortgage of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;even date herewith.
(e) a certificateThe Borrower shall have paid to the Lender the following costs, dated fees and expenses: (i) loan commitment fee in the Fifth Amendment Effective Date and signed amount of $100,000.00; (ii) legal fees incurred by the chief financial officerLender in connection with the negotiation, treasurer or controller preparation, review and execution of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the this Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, all documents and agreements required or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date contemplated hereby; and (ziii) since March 31fees incurred or to be incurred by the Lender in closing the transactions contemplated by this Amendment and recording and filing any related documents, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;including without limitation costs of appraisal and costs of title review and insurance.
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel The Borrower shall have taken such actions and executed such documents and agreements as shall be reasonably requested by Lender to effect the Borrower, addressed to the Administrative Agent terms and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability conditions of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Samples: Master Loan Agreement (Homeland Energy Solutions LLC)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received at least thirteen (i13) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any counterparts of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed duly executed by the Borrower Borrowers and the Administrative AgentRequired Lenders, and (iii) each of provided the following documentsconditions are satisfied:
(a) executed counterparts Before and after giving effect to this Amendment from Amendment, the Borrower representations and each Lender;warranties of the Borrowers in Section 3 of the Credit Agreement, Section 5 of the Pledge and Security Agreement and Section 4 of the Servicing Security Agreement, of NCCC and NC Residual II Corporation in Section 4 of the Residual Security Agreement, and of NCFC in Section 15 of the Guaranty shall be true and correct as though made on the date hereof, except for changes that are permitted by the terms of the Credit Agreement.
(b) an instrumentAfter giving effect to this Amendment, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement no Event of Default and the Pledge Agreement;no Unmatured Event of Default shall have occurred and be continuing.
(c) a certificate No material adverse change in the business, assets, financial condition or prospects of NCMC or NCFC shall have occurred since December 31, 1999.
(d) The Agent shall have received the following, each duly executed or certified, as the case may be, and dated as of the date of delivery thereof:
(i) copy of resolutions of the Board of Directors of each Borrower, certified by its respective Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofSecretary, authorizing or ratifying the execution, delivery and performance of this AmendmentAmendment and the other agreements, documents and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrowerinstruments related hereto;
(dii) a certified copy of the certificate of incorporation any amendment or restatement of the Borrower, together with certificates Articles of good standing Incorporation or existence, as may be available from the Secretary By-laws of State each Borrower made or entered following the date of the jurisdiction of organization of most recent certified copies thereof furnished to the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectLenders;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(giii) certified copies of all consentsdocuments evidencing any necessary corporate action, approvalsconsent or governmental or regulatory approval (if any) with respect to this Amendment;
(iv) a Reaffirmation of NCFC Guaranty duly executed by NCFC; and
(v) such other documents, authorizationsinstruments, registrations opinions and filings and orders approvals as the Agent may reasonably request.
(e) The Agent shall have received the amendment fee required or advisable to be made or obtained under any Requirement by Section 8.16 of Law, or by any Contractual Obligation the Credit Agreement.
(f) The Agent shall have received an up-front fee (each an "Up-front Fee") for the benefit of each Loan PartyLender, in connection with the execution, delivery, performance, validity and enforceability based on a percentage of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingLender's initial commitment amount as specified below.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Second Amendment shall become effective on and as of the date (such date the “Second Amendment Effective Date”) when of the execution and delivery of this Second Amendment by the Borrower, the Administrative Agent and the Required Lenders and satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received (i) such fees as the Borrower payment, for distribution to each Lender that has previously agreed to pay on or prior to the date that signed and delivered this Second Amendment becomes effective to the Administrative Agent by not later than 12:00 Noon (New York City time) on August 8, 2006 (or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement such later time or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise date as agreed by the Borrower and the Administrative Agent), and (iii) each of an amendment fee equal to 0.25% of the following documents:
(a) executed counterparts Aggregate Exposure of such Lender then in effect immediately prior to this the Second Amendment from the Borrower and each Lender;Effective Date.
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement The Lenders and the Pledge Agreement;Administrative Agent shall have received all other fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), in connection with the Second Amendment.
(c) The Administrative Agent shall have received (i) a certificate of the Secretary or Assistant Secretary or similar officer of the Borrower, attaching dated the Second Amendment Effective Date, and certifying copies (A) that attached thereto is a true and complete copy of its bylaws and resolutions duly adopted by the Board of Directors (or equivalent governing body) of the resolutions of Borrower (or its board of directors or any duly authorized committee thereof, managing member) authorizing the execution, delivery and performance of this Second Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations resolutions have not been modified, rescinded or amended and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be are in full force and effect on the Second Amendment Effective Date, (B) as to the incumbency and all applicable waiting periods specimen signature of each officer executing this Second Amendment or any other document delivered in connection herewith on behalf of the Borrower and (C) as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing such certificate; and (ii) a good standing certificate for the Borrower from its jurisdiction of organization.
(d) The Administrative Agent shall have expiredreceived an Acknowledgement and Consent in the form of Exhibit A attached hereto, executed and no investigation or inquiry delivered by any governmental authority regarding each Loan Party other than the Amendment shall be ongoingBorrower.
Appears in 1 contract
Samples: Credit Agreement (Educate Inc)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) all fees required pursuant to that certain Fee Letter dated as of November 18, 2003, among SunTrust Capital Markets, Inc., the Administrative Agent and the Borrower, (ii) such other fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (iiiii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment Amendment, the transactions contemplated hereby or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iiiiv) each of the following documentsconditions shall have been satisfied:
(a) the Borrower, each of the Subsidiary Loan Parties and the Lenders shall have executed and delivered counterparts to this Amendment from to the Borrower and each LenderAdministrative Agent;
(b) an instrumentEach of Hughes MRO, LP, Century Maintenance, L.P., Century Maintenance (Houston), L.P. and Century Maintenance Supply – S. Cal., Inc. shall have executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the and delivered a Subsidiary Guaranty Supplement and an Indemnity and Contribution Agreement Supplement, each in form and substance satisfactory to the Pledge AgreementAdministrative Agent;
(c) a certificate the Administrative Agent shall have received certified articles of the Secretary formation (or Assistant Secretary of the Borrowerequivalent constitutive documents), attaching good standing certificates and certifying certified copies of its bylaws and of the resolutions of its board of directors or other organizational documents, including any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendmentpartnership agreements, and certifying the nameclosing certificates (including an incumbency certification) for Hughes MRO, title LP, Century Maintenance, L.P., Century Maintenance (Houston), L.P., and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerCentury Maintenance Supply – S. Cal., Inc.;
(d) a the Administrative Agent shall have received certified copy copies of authorizing resolutions of board of directors (or other equivalent governing body) for the Borrower, each Subsidiary Guarantor, Hughes MRO, LP, Century Maintenance, L.P., Century Maintenance (Houston), L.P. and Century Maintenance Supply – S. Cal., Inc.;
(e) the Administrative Agent shall have received such legal opinions (including opinions (i) from counsel to the Borrower and its Subsidiaries and (ii) delivered to the Borrower by counsel to Century, accompanied by reliance letters in favor of the certificate Administrative Agent and the Lenders ) as it may reasonably request;
(f) the sources and uses of incorporation funds for the Century Acquisition shall be satisfactory to the Administrative Agent and the Required Lenders (provided, that the aggregate purchase price shall not exceed $370,000,000 (including fees and expenses not exceeding $10,000,000 in the aggregate)). The Administrative Agent and the Required Lenders shall be satisfied that the structure, terms and conditions of the Century Acquisition are substantially similar to the structure, terms and conditions in the sale and purchase agreement for the Century Acquisition delivered to the Administrative Agent and the Lenders prior to the date hereof; the Administrative Agent shall have received certified copies of all documents (including all schedules and exhibits thereto) relating to the Century Acquisition, which documentation shall be in form and substance satisfactory to the Required Lenders. The Administrative Agent shall have received satisfactory evidence that all conditions precedent to the Century Acquisition, other than the funding of the purchase price, have been satisfied;
(g) the Administrative Agent shall have received satisfactory evidence that all material (as reasonably determined by the Administrative Agent) governmental and other third party consents, approvals, authorizations, registrations or filings necessary or, in the discretion of the Administrative Agent, reasonably advisable in connection with the Century Acquisition, the Credit Agreement, the Senior Term Loan Documents and the continuing operations of the Borrower, together with certificates the Borrower’s Subsidiaries, Century and Century’s Subsidiaries shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Century Acquisition or the financing thereof. No consent decree regarding the Credit Agreement, the Senior Term Loan Documents or the Century Acquisition shall be in effect on the Amendment No. 1 Closing Date;
(h) there shall not exist (pro forma for the Century Acquisition and the financing thereof) any Default or Event of good standing Default under the Credit Agreement, the Senior Term Loan Documents or existence, as may be available from the Secretary of State of the jurisdiction of organization under any other material indebtedness or agreement of the Borrower and each other jurisdiction where or Century;
(i) there shall not have occurred or become known to the Borrower is required to be qualified to do business as a foreign corporation where Administrative Agent or the failure to be so qualified Required Lenders any event, development or circumstance since January 31, 2003 that has caused or could reasonably be expected to have cause a Material Adverse Effect;
(ej) the Administrative Agent shall have received a certificate, dated the Fifth Amendment Effective Date and signed by solvency certificate from the chief financial officer, treasurer or controller officer of the Borrower, certifying that (w) no Default or Event Borrower which shall certify as to the solvency of Default exists, (x) the Borrower and its Subsidiaries after giving effect to the execution and delivery of Century Acquisition, the Amendment Senior Term Loan Documents and the funding of the Term Loans on the Fifth Amendment Effective Dateother transactions contemplated hereby, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined all in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations form and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed substance satisfactory to the Administrative Agent; and
(k) the Administrative Agent shall have received such other certificates, documents and each of the Lenders, and covering such matters relating agreements with respect to the Borrower, the Amendment Subsidiary Loan Parties, Century and the transactions contemplated therein Century Acquisition as the Administrative Agent or and the Required Lenders shall may reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date on which the following conditions precedent have been satisfied (the “Effective Date”):
(a) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that counterparts of this Amendment becomes effective to duly executed and delivered by each of the Administrative Agent or any of its affiliates in connection with this AmendmentBorrowers, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)Guarantor, (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower Required Lenders, and each Extending Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) Administrative Agent shall have received a certificate of a Responsible Officer or the Secretary or Assistant Secretary of (i) each Loan Party (or the Borrower, attaching and general partner thereof) dated the Effective Date certifying copies of its bylaws and of that (A) attached thereto are the resolutions and consent of its board such Loan Party’s (or general partner thereof’s) Board of directors Directors (or any duly authorized committee thereof, similar governing body) approving and authorizing the execution, delivery and performance of this AmendmentAmendment and the extension of the Scheduled Maturity Date of each Extending Lender effected pursuant to Section 2, (B) there have been no amendments or other modifications to the Constituent Documents of such Loan Party since the Amendment No. 3 Effective Date (or, solely with respect to Gulf South, the Amendment No. 4 Effective Date) or attaching thereto true, correct, and certifying complete copies of any such amendments or modifications or the nameamended or otherwise modified Constituent Documents of such Loan Party, title and (C) attached thereto are the names and true signature signatures of each officer of such Loan Party (or general partner thereof) that has been authorized to execute and deliver any Loan Document or other document required under the Borrower executing the Amendment Credit Agreement to be executed and delivered by or on behalf of such Loan Party and (ii) each of BGL and the BorrowerGeneral Partner dated the Effective Date certifying that there have been no amendments or other modifications to the Constituent Documents of such Person since the Amendment No. 3 Effective Date or attaching thereto true, correct, and complete copies of any such amendments or modifications or the amended or otherwise modified Constituent Documents of such Person;
(c) all governmental and third party approvals necessary in connection with this Amendment and the transactions contemplated by the Loan Documents shall have been obtained and be in full force and effect;
(d) the Borrowers shall have paid all other fees and expenses (including reasonable fees of counsel) which are then due and payable to the Administrative Agent or the Lenders, including all fees due and payable under that certain Fee Letter dated as of June 30, 2023, among the Borrowers, Xxxxx Fargo Securities, LLC, and Xxxxx Fargo Bank, N.A.;
(e) the Administrative Agent shall have received a certified copy of the certificate of incorporation good standing, dated as of the Borrowera recent date, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction State of organization of the Borrower and Delaware with respect to each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificateLoan Party, dated the Fifth Amendment Effective Date and signed by the chief financial officerBGL, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;General Partner; and
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent representations and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be warranties made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, Party in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders Section 5 shall be in full force true and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding correct on the Amendment shall be ongoingdate hereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Noteholders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when the Administrative Agent Company shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendmentno rights hereunder, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each until satisfaction of the following documentscondition set forth in the last sentence of this Section 3 and until each Noteholder shall have received:
(a) executed counterparts to a copy of this Amendment from executed by the Borrower Company, the Subsidiary Guarantors and each Lenderthe Required Holders;
(b) an instrument, a fully executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreementcopy of Bank Amendment No. 2;
(c) a certificate fully executed copies of the Secretary or Assistant Secretary of Shared Security Agreement and such other Shared Security Documents as the BorrowerRequired Holders shall deem appropriate in their reasonable discretion, attaching together with such financing statements and certifying copies of its bylaws and of other documentation required to perfect the resolutions of its board of directors or any duly authorized committee thereof, authorizing Liens created by the execution, delivery and performance of this Amendment, and certifying Shared Secured Documents as the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerRequired Holders shall deem appropriate in their reasonable discretion;
(d) a certified fully executed copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower Intercreditor and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectCollateral Trust Agreement;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller an amendment fee in an amount equal to 0.0625% of the Borrower, certifying that outstanding principal amount of the Notes held by such Noteholder (w) no Default or Event of Default exists, (x) after giving effect such fee to be paid in the manner and to the execution account specified in the Note Purchase Agreement for payments of principal and delivery interest in respect of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of Notes or to such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally other account as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there Noteholder shall have been no change which has had or could reasonably be expected specified in writing to have a Material Adverse Effecthe Company);
(f) a favorable written opinion opinions of Xxxxx Xxxxx L.L.P., counsel from the Obligors’ in-house attorney and Lxxxxxxxxx Xxxxxxx PC in form and substance reasonably satisfactory to the Borrower, addressed to the Administrative Agent and each of the Lenders, Required Holders and covering such matters relating (including as to the Borrowerperfection of the security interest created pursuant to the Shared Security Documents, the Amendment enforceability of the 2002 Note Documents, the valid organization, good standing and due authorization of the Obligors, and the transactions contemplated therein lack of any conflicts of the Obligors (including with respect to any material agreements)) as the Administrative Agent or the Required Lenders Holders shall reasonably request; and
(g) certified copies payment of the reasonable fees, charges and disbursements of counsel to the Noteholders incurred in connection with this Amendment. In addition, all consents, approvals, authorizations, registrations corporate and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, other proceedings in connection with the execution, delivery, performance, validity transactions contemplated by this Amendment and enforceability all documents and instruments incident to such transactions shall be satisfactory to the Required Holders and their special counsel (such satisfaction to be established by the execution and delivery of this Amendment or any by the Required Holders). The date on which all such conditions to the effectiveness of this Amendment have been met is referred to herein as the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing“Effective Date”.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment the amendments set forth in Section 1 above and the release set forth in Section 2 above shall not become effective on effective, and the date (the “Effective Date”) when the Administrative Agent Borrower shall have received (i) such fees as no rights thereunder, unless and until the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement and Lead Lenders receive:
a. Reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower Lead Lenders and the Administrative Agent, and (iii) each of the following documents:);
(a) executed b. Executed counterparts to this Amendment from the Borrower Borrower, Holdings, the Agent and each Lenderthe Lenders constituting at least Required Lenders;
c. A copy of the final form of the purchase and sale agreement for the Permitted Xpress Global Sale to occur on the date hereof, in form and substance satisfactory to the Lead Lenders (bit being understood that the purchase and sale agreement reviewed by the Lead Lenders on April 9, 2015 is deemed to be in form and substance satisfactory to the Lead Lenders), and all related transaction documents;
d. Copies of the XGS Organizational Documents, certified by the secretary of the XGS Parent that they are true, correct and complete as of the date hereof;
e. A final funds flow and detailed sources and uses statement in respect of the sale of the XGS Parent, in form and substance satisfactory to the Lead Lenders and setting forth the calculations of (i) an instrumentthe Net Cash Proceeds of the Permitted Xpress Global Sale and (ii) the Eligible Accounts (as defined in the ABL Facility as in effect on May 30, executed by each Loan Party2014) of the Permitted Xpress Global Sale, pursuant calculated with reference to the most recent borrowing base certificate based upon which such Loan Party reaffirms its obligations advances were made under the Security AgreementABL Facility, payable to the Subsidiary Guaranty Agreement and ABL Agent in accordance with Section 5.1(b)(iii)(B) of the Pledge Intercreditor Agreement;
(c) a certificate of f. An acknowledgment by the Secretary or Assistant Secretary of ABL Agent and lenders under the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance ABL Facility of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein hereunder, including consent and authorization by the ABL Agent for Borrower (or its agents or designees) to release the Liens of the ABL Agent in Collateral (as defined in the Administrative Agent or Intercreditor Agreement) disposed of in the Required Lenders shall reasonably requestPermitted Xpress Global Sale; and
(g) certified copies of all consentsg. All other documents, approvals, authorizations, registrations and filings and orders required opinions or advisable to be made or obtained under any Requirement of Law, or information reasonably requested by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAgent.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder or to the Administrative Agent for the account benefit of each Incremental Lender)the Lenders in connection with this Amendment, (ii) reimbursement or payment of its reasonable out-of-pocket the costs and expenses of the Administrative Agent incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iii) each of the following documents:documents (the first date on which all such conditions have been satisfied, the “Effective Date”):
(a) executed counterparts to this Amendment from the Borrower Borrower, each Subsidiary party hereto and each Lenderthe Lenders;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower and each Subsidiary party hereto, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower or Subsidiaries, as applicable, executing this Amendment and confirming that the Amendment on behalf articles of incorporation and bylaws have not changed since the Closing Date;
(c) a favorable written opinion of counsel to the Borrower, addressed to the Administrative Agent, the Issuing Bank and each of the BorrowerLenders, and covering such matters relating to the Loan Parties, this Amendment and the transactions contemplated herein as the Administrative Agent shall reasonably request;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestSubsidiary party hereto; and
(ge) certified copies of all consents, approvals, authorizations, registrations and filings and orders orders, if any, required or advisable to be made or obtained under any Requirement of applicable Law, or by any Contractual Obligation material contractual obligation of the Borrower and each Loan PartySubsidiary party hereto, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated therebyhereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment Governmental Authority related thereto shall be ongoing.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment and the terms contemplated hereby shall not become effective on effective, and the date Borrower shall have no rights under this Amendment, until:
(the “Effective Date”a) when the Administrative Agent shall have received (i) the fees set forth in that Fee Letter dated as of July 31, 2013 among the Borrower, the Administrative Agent, RBS Securities Inc. and Crédit Agricole Corporate and Investment Bank, (ii) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (iiiii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent);
(b) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) Agent shall have received each of the following documents:
(ai) executed counterparts to this Amendment from the Borrower and each Lenderthe Lenders;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(cii) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its board boards of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, the Amendment and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerAmendment;
(diii) a certified copy copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction jurisdictions of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where in which the failure to so qualify and be so qualified could in good standing would have or would reasonably be expected to have a Material Adverse Effect;; and
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(fiv) a favorable written opinion of Xxxxx Xxxxx L.L.P., inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein herein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date Borrower shall have no rights under this Amendment, until:
(the “Effective Date”a) when the Administrative Agent shall have received (i) an amendment fee in the amount of 0.05% of the Revolving Commitments as of the Third Amendment Effective Date (immediately prior to giving effect to the Pawnee Acquisition Incremental Commitments) of the Lenders that consent to this Amendment, to be applied pro rata among such Lenders, (ii) such other fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or Agent, any of its affiliates in connection with this Amendment, including without limitation and any of the fees payable Lenders pursuant to the Fifth Amendment Pawnee Acquisition Fee Letter and (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (iiiii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or and the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent);
(b) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) Agent shall have received each of the following documents:
(ai) executed counterparts to this Amendment from each of (i) the Borrower Loan Parties, (ii) the Required Lenders and each Lender(iii) the Lenders providing the Pawnee Acquisition Incremental Commitments;
(bii) an instrumentcopies of the acquisition agreement and related documents (including material financial information and analysis, executed environmental assessments and reports, opinions, certificates and lien searches) and information reasonably requested by each Loan Party, pursuant the Administrative Agent with respect to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementPawnee Acquisition;
(ciii) a pro forma Compliance Certificate signed by a Responsible Officer certifying that, before and after giving effect to the Pawnee Acquisition and any Indebtedness incurred in connection therewith, on a Pro Forma Basis and giving effect to any Project EBITDA Adjustment arising from any Pawnee Terminalling Contract on a pro forma basis, the Borrower is in compliance with each of the covenants set forth in Article VI of the Credit Agreement, measuring Consolidated Total Debt and, if applicable, Consolidated Secured Debt as of the date of the Pawnee Acquisition and otherwise recomputing the covenants set forth in Article VI of the Credit Agreement as of the last day of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b) of the Credit Agreement as if such Acquisition had occurred, and any Indebtedness incurred in connection therewith was incurred, on the first day of the relevant period for testing compliance;
(iv) a certificate executed by a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that:
(A) immediately before and after giving effect to the Pawnee Acquisition and any Indebtedness incurred in connection therewith, no Default or Event of Default has occurred and is continuing or would result therefrom, and all representations and warranties of each Loan Party set forth in the Secretary Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or Assistant Secretary other materiality, in which case such representations and warranties shall be true and correct in all respects) except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date;
(B) the Borrower, attaching Pawnee Acquisition is consensual and certifying copies of its bylaws and of has been approved by the resolutions of its board of directors (or any duly authorized committee the equivalent thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer ) of the Borrower executing the Amendment on behalf of the BorrowerPerson whose stock or assets are being acquired;
(dC) the Person or assets being acquired is in the energy logistics business or any business reasonably related thereto;
(D) the Pawnee Acquisition has been consummated in compliance with all Requirements of Law, and all consents and approvals from any Governmental Authority or other Person required in connection with the Pawnee Acquisition have been obtained; and
(E) immediately before and after giving effect to the Pawnee Acquisition and any Indebtedness incurred in connection therewith, the MLP and its Restricted Subsidiaries, on a consolidated basis, are Solvent;
(v) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State (or equivalent thereof) of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectLoan Party;
(evi) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller certificate of the BorrowerSecretary or Assistant Secretary of each Loan Party, certifying that (w) no Default or Event of Default existsin form and substance reasonably satisfactory to the Administrative Agent, (x) after giving effect certifying that there have been no changes (other than as may be attached to such certificate of the Secretary or Assistant Secretary) to the execution certificate of incorporation and delivery bylaws (or, in each case, comparable organizational documents) from the certificate of incorporation and bylaws (or, in each case, comparable organizational documents) of such Loan Party delivered pursuant to the Amendment and the funding of the Term Loans Credit Agreement on the Fifth Closing Date or the Second Amendment Effective Date, neither the Borrower nor its Subsidiariesas applicable, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, and (y) all attaching and certifying copies of the resolutions of its board of directors or other representations equivalent governing body, or comparable authorizations, authorizing the execution, delivery and warranties performance of the Third Amendment, the Credit Agreement (as amended hereby) and any other Loan Documents executed in connection with the Third Amendment to which it is a party and certifying the name, title and true signature of each officer of such Loan Party set forth in executing the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have it is a Material Adverse Effect;party; and
(fvii) a favorable written opinion of Xxxxx Xxxxx Xxxxxx & Xxxxxx L.L.P., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, Lenders and covering such matters relating to the BorrowerThird Amendment, the Credit Agreement (as amended hereby), the other Loan Documents executed in connection with the Third Amendment and the transactions contemplated herein and therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Arc Logistics Partners LP)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when the Administrative Agent Borrower shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with no rights under this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of until the following documentscondition precedents are satisfied:
(a) executed The Administrative Agent shall have received:
(i) (A) Executed counterparts to this Amendment from the Borrower and each Lenderthe Lenders and (B) in the case of any Joining New Lender (as defined below), any additional documents required to be delivered by such Joining New Lender pursuant to Section 14 of this Amendment;
(bii) an instrument, a promissory note executed by the Borrower in favor of each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementLender that has requested a Note;
(ciii) a A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of each employee of the Borrower who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of the Borrower, attaching and certifying copies of its (B) the bylaws and (or equivalent organizational document) of the Borrower as in effect on the date of such certification, and (C) all resolutions of its board of directors or any duly authorized committee thereof, the Borrower approving and authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have it is a Material Adverse Effect;party; and
(fiv) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, Written opinions (addressed to the Administrative Agent and the Lenders and dated the date hereof) of counsel for the Borrower, substantially in the form of the opinions originally delivered in connection with the Credit Agreement;
(b) The representations and warranties contained in Article V of the Credit Agreement or any other Loan Document shall be true and correct;
(c) No Default or Event of Default shall have occurred and be continuing;
(d) The Administrative Agent, the L/C Issuer and each of the LendersArrangers, as the case may be, shall have received all costs, fees, expenses and covering such matters relating other compensation then payable to the BorrowerAdministrative Agent, the Amendment applicable Arranger and the transactions contemplated therein as Lenders;
(e) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced (in reasonable detail) prior to or on the Required Lenders Closing Date, plus such additional amounts of such fees, charges and disbursements as shall reasonably requestconstitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent); and
(gf) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods Each Joining New Lender shall have expiredreceived all documentation and other information it requires with respect to the Borrower and the Guarantors that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, and no investigation or inquiry by any governmental authority regarding including, without limitation, the Amendment shall be ongoingPATRIOT Act.
Appears in 1 contract
Samples: December Maturity Community Bank Credit Agreement (Tennessee Valley Authority)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “First Amendment Effective Date”):
(a) when The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the Parent Borrower and each Lender party hereto (who, for the avoidance of doubt, constitute Required Lenders).
(b) The Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable and documented out- of-pocket fees and expenses of legal counsel), on or before the First Amendment Effective Date.
(c) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Parent Borrower, attaching dated the date hereof, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofattachments, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of including the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from Parent Borrower certified by the Secretary of State relevant authority of the jurisdiction of organization of the Parent Borrower or a certification that such documents have not been amended since such documents were previously delivered to the Administrative Agent and each other (ii) a long-form good standing certificate for the Parent Borrower from the applicable jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;of organization. 509265-2090-14997-Active.27751355.4
(ed) a certificate, dated the Fifth Immediately prior to and after giving effect to this Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (wi) no Default or Event of Default exists, shall have occurred and be continuing and (xii) after giving effect to the execution and delivery each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are shall be true and correct in all material respects, respects on and as of such date as if made on and as of such date (except to the extent that such any representations and warranties specifically refer which expressly relate to an earlier date shall be true and correct in all material respects as of such earlier date).
(ze) since March 31, 2014, there The Administrative Agent shall have been no change which has had or could reasonably be expected to have received a Material Adverse Effect;
(f) certificate signed by a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each duly authorized officer of the Lenders, and covering such matters relating to Parent Borrower certifying that the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
conditions specified in clause (gd) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any Section 3 have been satisfied as of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the First Amendment shall be ongoingEffective Date.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such the fees set forth in that Fee Letter dated as of September 24, 2014 among the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to Borrower, the Administrative Agent or any of its affiliates in connection with this Amendmentand SunTrust Rxxxxxxx Xxxxxxxx, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)Inc., (ii) to the extent the Borrower is invoiced prior to the effective date of this Amendment, reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrumentBorrower, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security AgreementComerica Bank, the Subsidiary Guaranty Agreement Administrative Agent and the Pledge Agreement;
Lenders, (civ) a certificate of the Secretary or Assistant Secretary of the Borrower, (A) attaching a certificate of good standing or existence of a recent date, as may be available from the Secretary of State of the jurisdiction of incorporation of the Borrower, (B) attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this the Amendment, and (C) certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf and (D) attaching and certifying copies of the Borrower;
(d) a certified copy of the certificate articles of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date ; and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(fv) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein herein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Samples: Treasury Secured Revolving Credit Agreement (OHA Investment Corp)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “First Amendment Effective Date”):
(a) when the The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any a counterpart of its affiliates in connection with this Amendment, including without limitation executed and delivered by a duly authorized officer of the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of Borrower, each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower Lender and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;.
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there The Administrative Agent shall have been no change which has had or could reasonably be expected to have received a Material Adverse Effect;
(f) a favorable customary written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, (addressed to the Administrative Agent and the Lenders and dated the First Amendment Effective Date) of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Borrower, and of Xxxxx Xxxx LLP, Nebraska counsel for the Borrower, each in form and substance reasonably acceptable to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received customary documents and certificates as the Administrative Agent shall reasonably request, relating to the organization, existence and good standing of the Lenders, Borrower and covering such the authorization of the transactions Table of Contents contemplated hereby and any other legal matters relating to the Borrower, the this Amendment and or the transactions contemplated therein as hereby, all in form and substance customary for transactions of the type contemplated hereby and reasonably satisfactory to the Administrative Agent.
(d) The Lenders, the Administrative Agent and the Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Required First Amendment Effective Date, including, to the extent invoiced not less than two (2) Business Days prior to the First Amendment Effective Date, reimbursement or payment of all out of pocket expenses and other amounts required to be reimbursed or paid by the Borrower hereunder or otherwise required to be paid pursuant to the Credit Agreement.
(e) The Lenders shall have received, at least two Business Days prior to the First Amendment Effective Date, all Patriot Act and “know your customer” / anti-money laundering documentation and information relating to the Borrower and its Subsidiaries reasonably request; and
requested by the Lenders in writing at least ten (g10) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable Business Days prior to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this First Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingEffective Date.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Increasing Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) upfront fees in the amount of one percent (1.0%) of the increase in the Term Loan Commitments provided hereunder, to be applied pro rata among the Increasing Lenders, (ii) such fees as the Borrower has previously agreed in writing to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (iiiii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding Xxxxxx Xxxxxx Xxxxxxx LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iiiiv) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower Borrower, each of the Guarantors and each Lenderthe Approving Lenders;
(b) an instrument, executed by each Loan Party, pursuant a favorable written opinion of counsel to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement Borrower and the Pledge Agreement;Guarantors, addressed to the Administrative Agent and Increasing Lenders, and covering such matters relating to this Amendment and the transactions contemplated therein as the Administrative Agent and the Increasing Lenders shall reasonably request; and
(c) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower and each Guarantor, attaching and certifying copies of its bylaws and of the resolutions of its board boards of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title and true signature of each officer of the Borrower or the Guarantor, as the case may be, executing the Amendment on behalf of Amendment, and confirming no changes have occurred to the Borrower;
(d) a certified copy of the certificate articles of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization bylaws of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingGuarantor.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Easylink Services International Corp)
Conditions to Effectiveness of this Amendment. It is understood This Amendment and agreed that this Amendment the amendments contained herein shall become effective on the date (the “Amendment No. 3 Effective Date”) when each of the conditions set forth below shall have been fulfilled to the satisfaction of the Administrative Agent:
(a) The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered on behalf of each of (i) such fees as the Borrower has previously agreed Borrower, (ii) the Administrative Agent, (iii) the Guarantors, (iv) the Required Lenders, (v) each Term A Lender, or in lieu of one or more Term A Lenders, one or more Additional Term A Lenders providing Additional Term A Commitments in an amount sufficient to pay on or prior refinance all of the principal of the Term Loans owed to the date that this Amendment becomes effective non-consenting Term Lenders and (vi) each Revolving Credit A Lender, or in lieu of one or more Revolving Credit A Lenders, one or more Additional Revolving Credit A Lenders providing Additional Revolving Credit A Commitments in an amount sufficient to refinance all of the principal of the Revolving Credit Loans owed to the non-consenting Revolving Credit Lenders, or as to any of the foregoing parties, advice reasonably satisfactory to the Administrative Agent or any that each of its affiliates in connection with the foregoing parties has executed a counterpart of this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter ;
(including without limitation fees payable thereunder to b) The Borrower shall have provided the Administrative Agent for with a notice in accordance with the account requirements of each Incremental Lender), Section 2.05(a) of the Credit Agreement three Business Days prior to the Amendment No. 3 Effective Date with respect to the refinancing in full of any Term Loans and Revolving Credit Loans from the proceeds of Additional Term A Loans and Additional Revolving Credit A Loans made by Additional Term A Lenders and Additional Revolving Credit A Lenders;
(iic) reimbursement or payment The Borrower shall have provided the Administrative Agent with a Committed Loan Notice in accordance with the requirements of its Section 2.02(a) of the Credit Agreement three Business Days prior to the Amendment No. 3 Effective Date with respect to the borrowing of the Term A Loans and Revolving Credit A Loans to be made on the Amendment No. 3 Effective Date;
(d) The Borrower shall have paid (i) all reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including the reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices incurred in connection with the preparation, negotiation and execution of this Amendment and (including estimated expensesii) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise all fees previously agreed by the Borrower and with the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificateEach Term A Lender and Revolving Credit A Lender shall have received, dated if requested, one or more Notes payable to the Fifth Amendment Effective Date and signed order of such Lender duly executed by the chief financial officer, treasurer or controller Borrower in substantially the form of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect Exhibits C-1 and C-2 respectively to the execution and delivery of Credit Agreement, as modified by this Amendment, evidencing the Amendment Term A Loans and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse EffectRevolving Credit A Loans;
(f) a The Borrower shall have paid to all the Term Lenders and all the Revolving Credit Lenders all accrued and unpaid interest on the Term Loans and the Revolving Credit Loans to (but not including) the Amendment No. 3 Effective Date plus any breakage, loss or expense due pursuant to Section 10.04 of the Credit Agreement;
(g) The Administrative Agent shall have received certified copies of (i) the resolutions of the Board of Directors of each Loan Party evidencing approval for this Amendment and all matters contemplated hereby and (ii) all documents evidencing other necessary corporate action and governmental and other third party approvals and consents if any, with respect to this Amendment and the matters contemplated hereby;
(h) The Administrative Agent shall have received favorable written opinion opinions of Xxxxx Xxxxx L.L.P.(i) Dxxxx Xxxx, senior attorney of the Loan Parties, and (ii) King & Spalding, special counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the LendersLender, and covering such matters relating as to the Borrowermatters set forth in this Amendment (and the Credit Agreement as amended hereby) and such other matters concerning the Loan Parties, the Loan Documents and this Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall may reasonably request; and
(gi) certified copies The Administrative Agent shall have received a certificate signed by a Responsible Officer of all consentsthe Loan Parties certifying (i) the identity, approvals, authorizations, registrations authority and filings capacity of each Responsible Officer of the Loan Parties authorized to sign this Amendment and orders required or advisable the other documents to be made delivered hereunder, (ii) that no authorization or obtained under any Requirement of Law, approval or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredother action by, and no investigation notice to or inquiry by filing with, any governmental authority regarding or regulatory body, or any third party to any agreements and instruments of any Loan Party is required for the due execution, delivery or performance by the Loan Parties of this Amendment, (iii) that the representations and warranties contained in this Amendment are true and correct as of the Amendment shall be ongoingNo. 3 Effective Date and (iv) that no event has occurred and is continuing that constitutes a Default.
Appears in 1 contract
Samples: Credit Agreement (Ndchealth Corp)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this Amendment The closing hereunder shall become effective occur on the date when each of the following conditions is satisfied (or waived by the “Effective Date”Administrative Agent and the Banks), each document to be dated the Closing Date unless otherwise indicated:
(a) when the Borrower shall have executed and delivered to the Administrative Agent duly executed original Notes and Money Market Notes for the account of each Bank dated on or before the Closing Date complying with the provisions of Section 2.5 of the Credit Agreement;
(b) the Borrower, the Administrative Agent, each of the Banks and any Designated Bidders shall have executed and delivered to the Borrower and the Administrative Agent a duly executed original of this Amendment;
(c) Guarantor shall have executed and delivered to the Administrative Agent a duly executed original of the Guaranty;
(d) the Administrative Agent shall have received an opinion of O'Melveny & Myerx, XXP, counsel for the Borrower and the Guarantor, acceptable to the Administrative Agent, and its counsel;
(ie) such fees the Administrative Agent shall have received all documents the Administrative Agent may reasonably request relating to the existence of the Borrower and Guarantor, the authority for and the validity of this Amendment and the other Loan Documents, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent. Such documentation shall include, without limitation, the agreement of limited partnership of the Borrower, as well as the certificate of limited partnership of the Borrower, both as amended, modified or supplemented to the Closing Date, certified to be true, correct and complete by a senior officer of the Borrower has previously agreed to pay on or as of a date not more than ten (10) days prior to the Closing Date, together with a long-form certificate of good standing as to the Borrower from the Secretary of State (or the equivalent thereof) of Delaware, a good standing certificate issued by the Secretary of State of the State of California, each to be dated not more than thirty (30) days prior to the Closing Date, as well as the articles of incorporation and bylaws of Guarantor, as amended, modified or supplemented to the Closing Date, certified to be true, correct and complete by a senior officer of Guarantor as of a date that not more than ten (10) days prior to the Closing Date, together with a good standing certificate as to Guarantor from the Secretary of State (or the equivalent thereof) of Maryland, to be dated not more than thirty (30) days prior to the Closing Date;
(f) the Borrower shall have taken all actions required to authorize the execution and delivery of this Amendment becomes effective to and the other Loan Documents and the performance thereof by the Borrower;
(g) the Administrative Agent or shall have received, for its and any of its affiliates in connection with this Amendmentother Bank's account, including without limitation the all fees due and payable pursuant to Section 2.9 of the Fifth Amendment Fee Letter Credit Agreement on or before the Closing Date, and the fees and expenses accrued through the Closing Date of Gibsxx, Xxnn & Xrutxxxx XXX;
(including without limitation fees payable thereunder h) Borrower shall have paid to the Administrative Agent for the account of each Incremental Lenderthe Banks, ratably in proportion to their respective Commitments, an extension fee equal to One Hundred Eighty-Two Thousand Five Hundred Dollars ($182,500.00), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (wi) no Default or Event of Default exists, shall have occurred; and
(xj) after giving effect each of the Notes and Money Market Notes executed by Borrower in connection with the Original Agreement shall have been surrendered by the relevant Bank to the execution Administrative Agent for cancellation and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither return to the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within simultaneously with the meaning of such term as defined in § 101 of Title 11 of Closing (it being acknowledged and agreed by the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, Banks that (y) all other representations the Notes and warranties the Money Market Notes executed by Borrower in connection with the Original Agreement shall be deemed canceled, paid in full and of each Loan Party set forth in no further force and effect as of the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date Closing Date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed extent any of such Notes or Money Market Notes are not surrendered or returned to the Administrative Agent and each Borrower as of the LendersClosing Date, the payee Bank of such unreturned Notes and Money Market Notes shall indemnify, defend, and covering hold Borrower harmless from and against any enforcement of such matters relating to the BorrowerNotes and Money Market Notes, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingapplicable.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date (such date, the “Amendment Effective Date”) when that the following conditions have been satisfied:
(a) the Administrative Agent shall have received counterparts of this Amendment executed by (i) such fees as the Borrower has previously agreed to pay on or prior to Borrower, Holdings and the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)other Loan Parties, (ii) reimbursement the Lenders, (iii) the Issuing Banks and (iv) the Swingline Lender;
(b) the Borrower (or payment of its designee) shall have paid, or caused to be paid, all reasonable and documented out-of-pocket costs and expenses incurred of the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment or the Credit Agreement (including reasonable the fees, charges and disbursements of King Xxxxxx Xxxxxx & Spalding LLP, Xxxxxxx LLP as counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two business days prior to the Amendment Effective Date;
(2c) days before the Borrower (or its designee) shall have paid, or caused to be paid to (i) the Administrative Agent, for the ratable account of each Consenting Lender, an upfront fee equal to 0.15% of the aggregate principal amount of such Lender’s Revolver Commitments under the Amended Credit Agreement as of the Amendment Effective Date unless otherwise agreed by and (ii) the Administrative Agent, the administrative agency fee on the terms set forth under that certain Amendment Fee Letter dated as of January 29, 2019 between the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of Administrative Agent shall have received from Sidley Austin LLP, special counsel for Holdings and the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, Lenders party to the Amended Credit Agreement on the Amendment Effective Date and covering such matters relating dated the Amendment Effective Date in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received a certificate of a Responsible Officer of Holdings or the Borrower, dated the Amendment Effective Date, certifying on behalf of the Borrower or Holdings that as of the Amendment Effective Date, the representations and the transactions contemplated therein as warranties set forth in Sections 3(a), 3(b) and 3(c) are true and correct;
(f) the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of have received a certificate from each Loan Party, dated the Amendment Effective Date, signed by the secretary, assistant secretary or similar officer of such Loan Party, in connection with each case, on behalf of such Loan Party (and not in any individual capacity), certifying (i) that the executioncopies of such Loan Party’s certificate or articles of incorporation and by- laws (or limited partnership agreement, deliverylimited liability company agreement or other equivalent governing documents) (x) as previously certified and delivered to the Administrative Agent, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be remain in full force and effect as of the Amendment Effective Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of such Loan Party’s jurisdiction of its organization or formation and all applicable waiting periods attached to such secretary’s certificate, are true and complete and in full force and effect as of the Amendment Effective Date, (ii) that the copies of the Loan Parties’ resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) approving and adopting this Amendment , and authorizing the execution and delivery thereof, as attached to such secretary’s certificate, are true and complete copies, have not been modified, rescinded or amended and are in full force and effect as of the Amendment Effective Date, (iii) as to the incumbency and specimen signature of each officer executing the Amendment or any other document delivered in connection herewith on behalf of such Loan Party and (iv) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party;
(g) the Administrative Agent shall have expiredreceived certificates as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each Loan Party as of a recent date from such Loan Party’s Secretary of State (or other similar official) and bring-down telegrams or facsimiles, and no investigation with respect to entities incorporated or inquiry formed under Applicable Law of any jurisdiction for the Loan Parties which the Administrative Agent reasonably may have requested, certified by any proper governmental authority regarding authorities;
(h) the Administrative Agent shall have received an updated Collateral Questionnaire, together with all attachments contemplated thereby, reflecting all changes since the date of the information most recently received pursuant to Sections 5.04(h) or 5.09(f) of the Credit Agreement; and
(i) each Lender that requests a Note at least two (2) Business Days prior to the Amendment Effective Date, if any, shall be ongoingreceive a Note executed by a Responsible Officer of the Borrower in favor of each such Lender.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date as of May 31, 2018 (the “Amendment No. 1 Effective Date”) when when:
i. this Amendment shall have been executed and delivered by the Borrowers, the Subsidiary Loan Parties, each New Revolving Lender, each Refinancing Term Lender and the Administrative Agent Agents;
ii. the Administrative Agents shall have received a certificate of a Responsible Officer of each Loan Party dated the date hereof certifying (iw) that attached thereto is a true and complete copy of the Organizational Documents of such fees Loan Party and, to the extent applicable, certified as of a recent date by the Borrower has previously agreed appropriate governmental official, (x) that attached thereto is a good standing certificate (to pay on the extent such concept is known in the relevant jurisdiction) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation dated a recent date prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)No. 1 Effective Date, (iiy) reimbursement or payment that attached is a true and complete copy of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed resolutions duly adopted by the Borrower and the Administrative Agent, and (iii) each board of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by directors or similar governing body of each Loan Party, pursuant or duly constituted committee thereof (including, with regard to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the U.K. Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofshareholder resolutions), authorizing the execution, delivery and performance of this Amendment, all documents executed in connection therewith, the borrowings thereunder, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect on such date and (z) as to the name, title incumbency and true specimen signature of each Responsible Officer executing this Amendment and any document executed in connection therewith and countersigned by another officer as to the incumbency and specimen signature of the Borrower Responsible Officer executing such certificate which shall also include a certification that (A) borrowing or guaranteeing or securing, as appropriate, the aggregate Commitments under the Credit Agreement and any other Loan Document would not cause any borrowing, guarantee, security or similar limit binding on a Loan Party to be exceeded, as applicable and (B) each copy document relating to it specified in this Section 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date earlier than the Amendment No. 1 Effective Date;
iii. the applicable Administrative Agent shall have received notices of borrowing of Refinancing Term Loans and New Revolving Loans, if applicable, and notices of prepayment relating to the Refinanced Term Loans;
iv. the applicable Administrative Agent shall have received a promissory note in form and substance reasonably acceptable to the applicable Administrative Agent executed by the applicable Borrower in favor of each Lender that requests such a promissory note at least three (3) Business Days in advance of the Amendment No. 1 Effective Date;
v. the representations and warranties set forth in Article 3 of the Credit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the date hereof (both before and after giving effect to the transactions contemplated by this Amendment) with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
vi. the representations and warranties in Section 4 of this Amendment shall be true and correct in all material respects as of the date hereof;
vii. each New Revolving Lender, Refinancing Term Lender and the Administrative Agents shall have received at least two (2) Business Days prior to the date hereof all documentation and other information about the Borrowers and the Subsidiary Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act that has been requested in writing at least five (5) Business Days prior to the date hereof;
viii. the applicable Administrative Agents shall have received, on behalf of themselves and the Borrowerapplicable Lenders, a favorable written opinion from each of Xxxxxxxx & Xxxxx, LLP, New York and Illinois counsel for the Loan Parties and Xxxxx Xxxx & Xxxxxxxx London LLP, U.K. counsel for the Tranche A Term Loan Administrative Agent and Revolving Facility Administrative Agent, in each case, (A) dated the date hereof, (B) addressed to the applicable Administrative Agents and the applicable Lenders and (C) in form and substance reasonably satisfactory to the applicable Administrative Agents and covering such other matters relating to this Amendment as the applicable Administrative Agents shall reasonably request;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) ix. no Default or Event of Default exists, (x) shall exist on the date hereof before or after giving effect to the execution Refinancing Term Loans and delivery of the Amendment any New Revolving Loans and the funding use of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectproceeds thereof;
x. all fees and expenses required to be paid by (for on behalf of) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed Borrowers to the Administrative Agent pursuant to any written agreement with any Borrower entered into on or before the Amendment No. 1 Effective Date and each of the Lenders, and covering such matters relating invoiced at least two (2) Business Days prior to the Amendment No. 1 Effective Date shall have been paid in full in cash;
xi. the Tranche A Term Loan Administrative Agent and Revolving Facility Administrative Agent shall have received a Parent Guaranty executed by the U.S. Borrower, the Amendment and the transactions contemplated therein as the Tranche A Term Loan Administrative Agent or and Revolving Facility Administrative Agent, in form and substance reasonably acceptable to the Required Lenders shall reasonably requestTranche A Term Loan Administrative Agent and Revolving Facility Administrative Agent; and
xii. at least two (g2) certified copies of all consentsdays prior to the date hereof, approvals, authorizations, registrations and filings and orders required or advisable any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any such Borrower. The Borrowing of the transactions contemplated thereby, Refinancing Term Loans and such consents, approvals, authorizations, registrations, filings and orders any New Revolving Loans shall be in full force deemed to constitute a representation and effect and all warranty by the applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding Borrower on the Amendment shall be ongoingNo. 1 Effective Date as to the matters specified in paragraphs (e) and (i) above.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date (first written above upon the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each satisfaction of the following documentsconditions precedent:
(a) The Agent shall have received a duly executed counterparts to counterpart of this Amendment from Amendment, executed by each of the Borrower Borrowers and each Lenderthe Lenders;
(b) an instrumentThe Agent shall have received a duly executed counterpart of each of the Security Agreements, executed by each Loan PartyBorrower and Guarantor party thereto, pursuant together with copies of amendments to which such Loan Party reaffirms its obligations under UCC and PPSA filings, executed by each of the Security Agreement, the Subsidiary Guaranty Agreement Borrowers and the Pledge AgreementLenders if necessary;
(c) The Agent shall have received a duly executed counterpart of the Intercreditor Agreement, executed by each party thereto;
(d) The Agent shall have received a duly executed counterpart of each Term Loan Document, executed by each of the Borrowers, Term Agent and the Term Loan Lenders.
(e) The Agent shall have received favorable opinions of counsel to the Borrowers from (a) Xxxxxxxx & Xxxxxx LLP, special U.S. counsel to the Borrowers and (b) Fraser Xxxxxx Casgrain LLP, special Canadian counsel to the Borrowers, each addressed to the Agent and the Canadian Agent, the L/C Issuers and the Lenders and addressing such matters as the Agent may reasonably request;
(f) The Agent shall have received a certificate of the Secretary secretary or Assistant Secretary other Responsible Officer of each Borrower in charge of maintaining Books and records of such Borrower certifying as to (A) the Borrowernames and signatures of each officer of such Borrower authorized to execute and deliver any of this Agreement, attaching the Security Agreements, the Intercreditor Agreement and certifying the Term Loan Documents, to which such Borrower is a party, (B) the Governing Documents of such Borrower attached to such certificate are complete and correct copies of its bylaws such Governing Documents as in effect on the date of such certification (or, for any such Governing Document delivered to the Agent on the Closing Date, that there have been no changes from such Governing Document so delivered) and of (C) the resolutions of its such Borrower’s board of directors or any duly authorized committee thereof, other appropriate governing body approving and authorizing the execution, delivery and performance of each of this AmendmentAgreement, the Security Agreements, the Intercreditor Agreement and certifying the nameTerm Loan Documents or any other agreement, title and true signature of each officer of the to which such Borrower executing the Amendment on behalf of the Borroweris a party;
(dg) a certified copy The Agent and the Lenders shall have received (i) payment of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party arrangement fee set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date Amendment Fee Letter and (zii) since March 31all other fees and costs (including reasonable attorneys fees) incurred in connection with the negotiation, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion preparation and execution of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestthis Amendment; and
(gh) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods The Agent shall have expired, received from the Borrowers such other documents and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoinginformation as it may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Bombay Co Inc)
Conditions to Effectiveness of this Amendment. It is understood This Amendment and agreed that this Amendment the amendments contained herein shall become effective on the date (the “Fourth Effective Date”) when each of the conditions set forth below shall have been fulfilled to the satisfaction of the Administrative Agent:
(a) The Administrative Agent shall have received (i) such fees as counterparts of this Amendment, duly executed and delivered on behalf of the Borrower has previously agreed to pay on or prior and the other Loan Parties thereto, as well as allonges to the date Revolving Credit Notes or amendments and restatements thereof, and the Supplement and Joinder, duly executed by the parties thereto.
(b) No event shall have occurred and be continuing that this constitutes an Event of Default, or that would constitute an Event of Default but for the requirement that notice be given or that a period of time elapse, or both.
(c) All representations and warranties of the Borrower contained in the Credit Agreement, and all representations and warranties of each other Loan Party in each Loan Document to which it is a party, shall be true and correct in all material respects at the Fourth Amendment becomes effective Effective Date as if made on and as of such Fourth Amendment Effective Date, except that (a) any representation or warranty relating to any financial statements shall be deemed to be applicable to the financial statements most recently delivered to the Administrative Agent in accordance with the provisions of the Loan Documents and (b) each other representation or warranty expressly stated to be made as of the Closing Date shall not be deemed to have been made as of any of its affiliates in connection with this Amendment, including without limitation date other than the fees payable pursuant to the Fifth Amendment Fee Letter Closing Date.
(including without limitation fees payable thereunder d) The Borrower shall have delivered to the Administrative Agent for the account (1) certified copies of each Incremental Lender), (ii) reimbursement or payment evidence of its reasonable out-of-pocket costs all corporate and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed company actions taken by the Borrower and the Administrative Agent, other Loan Parties to authorize the execution and (iii) each delivery of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
Supplement and Joinder and the other Loan Documents related thereto, (c2) a certified copies of any amendments to the articles or certificate of the Secretary incorporation, formation or Assistant Secretary of the Borrowerorganization, attaching and certifying copies of its bylaws and of the resolutions of its board of directors bylaws, partnership certificate or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization operating agreement of the Borrower and each other jurisdiction where Loan Party since the date of the Credit Agreement, (3) a certificate of incumbency for the officers or other authorized agents, members or partners of the Borrower is and each other Loan Party executing this Amendment and the Supplement and Joinder and the other Loan Documents related thereto, (4) all documents, certificates, resolutions and other items required by Section 2.24 of the Credit Agreement with respect to be qualified the Borrower’s request to do business increase the Aggregate Revolving Commitments and (5) such additional supporting documents as a foreign corporation where the failure to be so qualified could Administrative Agent or counsel for the Administrative Agent reasonably be expected to have a Material Adverse Effect;may request.
(e) a certificate, dated The Borrower shall have paid the Fifth fees and expenses required to be paid by Section 10 of this Amendment Effective Date and signed by the chief financial officer, treasurer or controller provisions of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution Supplement and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;Joinder.
(f) a favorable written opinion All documents delivered pursuant to this Amendment must be of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed form and substance satisfactory to the Administrative Agent and each of the Lendersits counsel, and covering such all legal matters relating incident to this Amendment must be satisfactory to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAgent’s counsel.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date (the “Effective Date”) when each of the following conditions precedent shall have been satisfied: Exhibit 10.2 BWP 10-Q 06/30/2009 Exhibit 10.2 -----
(a) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that Effective Date each of the following, each dated the Effective Date unless otherwise indicated or agreed to by the Administrative Agent and in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Amendment becomes effective duly executed and delivered by each of the Borrowers, the MLP, the Administrative Agent, the Issuer, the Swingline Lender and each Lender under the Credit Agreement;
(ii) written commitments duly executed by existing Lenders (or their Affiliates or Approved Funds) or Eligible Assignees in an aggregate amount equal to $300,000,000 and, in the case of each such Eligible Assignee that is not an existing Lender, an assumption agreement in form and substance satisfactory to the Administrative Agent or any of its affiliates in connection with this Amendmentand duly executed by the Parent Borrower, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account and such Eligible Assignee;
(iii) a favorable opinion of each Incremental Lender), (iiA) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King Vxxxxx & Spalding Exxxxx LLP, counsel to the Administrative AgentLoan Parties, and (B) for which invoices (including estimated expenses) have been presented in-house counsel to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and Loan Parties, each addressed to the Administrative Agent, the Lenders and (iii) each of the following documents:
(a) executed counterparts to this Amendment from Issuers and addressing such matters as the Borrower and each LenderAdministrative Agent may reasonably request;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(civ) a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) the Borrowernames and true signatures of each officer of such Loan Party that has been authorized to execute and deliver this Amendment and the other documents required hereunder to be executed and delivered by or on behalf of such Loan Party, attaching and certifying copies of its bylaws and of (B) the resolutions of its board such Loan Party’s Board of directors Directors (or any duly authorized committee thereof, equivalent governing body) approving and authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title other documents required hereunder to be executed and true signature of each officer of the Borrower executing the Amendment delivered by or on behalf of the Borrower;
such Loan Party and (dC) a certified copy of that there have been no changes in the certificate of incorporation (or equivalent Constituent Document) and the by-laws (or equivalent Constituent Document) of the Borrower, together with certificates of good standing or existence, as may be available such Loan Party from the Secretary certificate of State of incorporation (or equivalent Constituent Document) and the jurisdiction of organization of by-laws (or equivalent Constituent Document) previously delivered to the Borrower and each other jurisdiction where Administrative Agent on the Borrower is required to be qualified to do business as Effective Date (or if there has been such a foreign corporation where the failure to be so qualified could reasonably be expected to have change, attaching a Material Adverse Effectcertified copy thereof);
(ev) a certificate, dated the Fifth Amendment Effective Date and signed by certificate of the chief financial officerofficer of each Borrower in his capacity as such (and not in his individual capacity), treasurer or controller in form and substance satisfactory to the Administrative Agent, attesting to the solvency of the Borrower, certifying that (w) no Default or Event of Default exists, (x) Borrowers and the MLP after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions Revolving Credit Commitment Increase contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requesthereby; and
(gvi) certified copies a certificate of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any a Responsible Officer of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be Borrowers to the effect that the conditions set forth in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.Section 4.2(b) (
Appears in 1 contract
Samples: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Second Amendment shall become effective on and as of the date (such date the “Second Amendment Effective Date”) when each of the following conditions has been satisfied or waived as set forth in Section 10.1 of the Existing Credit Agreement:
(a) The Administrative Agent (or its counsel) shall have received from each Loan Party either (iA) a counterpart to this Second Amendment executed and delivered on behalf of such fees as the Borrower has previously agreed to pay on party or prior to the date that this Amendment becomes effective (B) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Second Amendment) that such party has executed and delivered a counterpart of this Second Amendment.
(b) The Administrative Agent (or any its counsel) shall have received evidence of its affiliates the execution and delivery by the Required Lenders (including all Affiliate Lenders) of this Second Amendment.
(c) The Borrower shall have, or shall have caused another Loan Party to, purchase from each Lender that has Term Loans that are being converted pursuant hereto into Extended Maturity Term Loans a portion of such Extended Maturity Term Loans equal to 20% thereof by payment, without set-off or counterclaim, of an amount in connection with this Amendment, including without limitation the fees payable pursuant immediately available funds equal to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder principal amount of such portion and accrued interest thereon to the Administrative Agent for the account of such Lender, and the Administrative Agent shall distribute such amount to such Lender promptly upon receipt. The parties hereto agree that each Incremental Lender)such purchase by the Borrower or such other Loan Party, (ii) reimbursement or payment as the case may be, shall be consummated on the same terms as are set forth in the form of its reasonable out-of-pocket costs Assignment and expenses incurred Assumption in connection with this Amendment or Exhibit E to the Existing Credit Agreement (without the necessity of any execution and delivery of such an Assignment and Assumption), which terms (including reasonable feesthe representations and warranties therein) are incorporated herein by reference and are made applicable to such purchase and the parties thereto. The Administrative Agent shall make appropriate entries in the Register reflecting the same.
(d) The Administrative Agent shall have received from the Borrower a consent fee payable for the account of each Lender who executes and delivers this Second Amendment at or prior to 5:00 p.m., charges New York City time on December 17, 2010 or such later date as the Borrower shall determine (the “Consent Deadline,” and disbursements each such Lender, a “Consenting Lender”) equal to 0.15% of King the aggregate principal amount of the Term Loans held by such Consenting Lender as of the Consent Deadline that are converted into Extended Maturity Term Loans and not purchased by the Borrower (or any other Loan Party selected by the Borrower) pursuant to Section 3(c) of this Second Amendment.
(e) The Administrative Agent shall have received a legal opinion of O’Melveny & Spalding Xxxxx LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Guarantors, and legal opinions of local counsel in Guernsey and the Cayman Islands, each in form and substance reasonably satisfactory to the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;.
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the The Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation have received a certificate of each Loan Party, dated the Second Amendment Effective Date, substantially in connection the form of Exhibit C to the Existing Credit Agreement, with the execution, delivery, performance, validity appropriate insertions and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingattachments.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall --------------------------------------------- become effective on the date (the “Effective Date”) when the Administrative Agent shall have received at least thirteen (i13) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any counterparts of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed duly executed by the Borrower Company and the Administrative AgentRequired Lenders and acknowledged by NCFC, and (iii) each of provided the following documentsconditions are satisfied:
(a) executed counterparts Before and after giving effect to this Amendment from Amendment, the Borrower representations and each Lender;warranties of the Company in Section 3 of the Credit Agreement, Section 5 of the Pledge and Security Agreement and Section 4 of the Servicing Security Agreement, of NCFC in Section 15 of the Guaranty, and of NCCC in Section 15 of the NCCC Guaranty shall be true and correct as though made on the date hereof, except for changes that are permitted by the terms of the Credit Agreement.
(b) an instrumentBefore and after giving effect to this Amendment, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement no Event of Default and the Pledge Agreement;no Unmatured Event of Default shall have occurred and be continuing.
(c) a certificate No material adverse change in the business, assets, financial condition or prospects of the Company or NCFC shall have occurred since the December 31, 1997.
(d) The Agent shall have received the following, each duly executed or certified, as the case may be, and dated as of the date of delivery thereof:
(i) copy of resolutions of the Board of Directors of the Company, certified by its respective Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofSecretary, authorizing or ratifying the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(dii) a certified copy of the certificate of incorporation any amendment or restatement of the BorrowerArticles of Incorporation or the By-laws of the Company made or entered following the date of the most recent certified copies thereof furnished to the Lenders;
(iii) certified copies of all documents evidencing any necessary corporate action, together consent or governmental or regulatory approval (if any) with respect to this Amendment;
(iv) the NCCC Guaranty, executed by the parties thereto;
(v) a certificate signed by the Secretary or an Assistant Secretary of NCCC certifying (A) as to the names, incumbency and true signatures of the respective persons authorized to execute and deliver this Amendment and each Loan Document to which it is or will be a party and (B) that the Agent and the Lenders may conclusively rely on such certificate until the Agent shall have received a further certification of its Secretary or an Assistant Secretary canceling or amending such certificate and submitting the names, incumbency and signatures of the officers named in such further certificate;
(vi) a copy of the Articles of Incorporation of NCCC with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its respective incorporation;
(vii) certificates of good standing or existence, as may be available from the Secretary of State of for NCCC in the jurisdiction of organization its incorporation and in each of the Borrower and each other jurisdiction where the Borrower jurisdictions in which it is required to be qualified to do business business, certified by the appropriate governmental officials;
(viii) a certificate of the Secretary or an Assistant Secretary of NCCC certifying to a true and correct copy of its respective bylaws, as a foreign corporation where amended as of the failure to be so qualified could date of this Amendment; and (ix) such other documents, instruments, opinions and approvals as the Agent may reasonably be expected to have a Material Adverse Effect;request.
(e) a certificate, dated The Agent shall have received the Fifth Amendment Effective Date and signed amendment fee required by the chief financial officer, treasurer or controller Section 8.16 of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, Credit Agreement as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date the following conditions precedent have been satisfied (the “Effective Date”):
(a) when the The Multi-Currency Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation duly executed and delivered by the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to Company and the Administrative Agents, (ii) the Consent and Affirmation, in the form attached hereto as Annex A, duly executed and delivered by each of the Guarantors, and (iii) Lender Consents, in the form attached hereto as Annex B (the “Lender Consent”), duly executed and delivered by Lenders constituting 100% of the Multi-Currency Lenders.
(b) The Multi-Currency Administrative Agent for shall have received reasonably satisfactory evidence that (i) all Payment Obligations arising under the account Term Loan Facility have been Fully Satisfied (including, without limitation, the payment of each Incremental Lenderthe Prepayment Fee applicable thereto), (ii) reimbursement or payment the Company shall have received gross proceeds under the Term Loan Agreement of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before $840,000,000 and the Term Loan Agreement shall be in full force and effect on the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each the Parent shall have commenced an equity offering of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrumentits Class A Common Stock with intended gross cash proceeds of at least $100,000,000, executed such as by each Loan Party, mailing a prospectus supplement if such equity offering is conducted pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;a rights offering.
(c) a certificate The Multi-Currency Administrative Agent shall have received (i) an Amended and Restated Intercreditor and Collateral Agency Agreement, duly executed and delivered by the Multi-Currency Administrative Agent, the New Term Loan Administrative Agent, the Collateral Agent, Revlon and the Company and (ii) amendments or amendments and restatements of each of the Secretary or Assistant Secretary other Security Documents reasonably requested by the Multi-Currency Administrative Agent, duly executed and delivered by the Multi-Currency Administrative Agent, the Collateral Agent and the applicable Loan Parties.
(d) The Multi-Currency Administrative Agent shall have received certified copies of resolutions of the Borrower, attaching and certifying copies Board of its bylaws and Directors of the resolutions of its board of directors or any duly authorized committee thereof, authorizing Company and each Guarantor approving the execution, delivery and performance of this Amendment, Amendment and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required documents to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;executed in connection herewith.
(e) The Multi-Currency Administrative Agent shall have received a certificatefavorable opinion of Xxxx, dated Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Fifth Amendment Effective Date Company and signed by each Guarantor, addressed to the chief financial officerMulti-Currency Administrative Agent, treasurer or controller the Collateral Agent, the Lenders and the Issuing Lenders and in form and substance reasonably satisfactory to the Multi-Currency Administrative Agent.
(f) The Multi-Currency Administrative Agent shall have received from the applicable title insurance company bring-down endorsements to each of the Borrowertitle insurance policies issued pursuant to the terms of the Credit Agreement insuring the continued first priority Lien of the Collateral Agent for the benefit of the Multi-Currency Secured Parties (as defined in the Pledge and Security Agreement) on each of the Mortgaged Properties pursuant to the Mortgages, certifying subject only to Customary Permitted Liens, and otherwise in form and substance reasonably satisfactory to the Multi-Currency Administrative Agent.
(g) The Multi-Currency Administrative Agent shall have received a solvency certificate from the principal financial officer of the Company, in form and substance reasonably satisfactory to the Multi-Currency Administrative Agent.
(h) The Multi-Currency Administrative Agent shall have received from the Company, for the ratable benefit of the Multi-Currency Lenders that have delivered a Lender Consent on or prior to 12:00 noon (wNew York time) no Default or Event on December 14, 2006, an amendment fee equal to 0.125% of Default exists, each such Multi-Currency Lender’s Multi-Currency Percentage of the Aggregate Multi-Currency Commitment on the Effective Date.
(xi) Prior to and after giving effect to the execution and delivery this Amendment, each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are shall be true and correct in all material respectsrespects on and as of the date hereof, as if made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(zj) since March 31, 2014, there No Default or Event of Default shall have been no change which has had occurred and be continuing on the date hereof prior to or could reasonably be expected after giving effect to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date as of June 2, 2016 (the “Amendment No. 1 Effective Date”) when when:
(a) this Amendment shall have been executed and delivered by the Borrower, the Subsidiary Loan Parties, each Refinancing Lender and the Term Loan Administrative Agent;
(b) the Term Loan Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower dated the date hereof certifying (w) that attached thereto is a true and complete copy of the certificate of incorporation, attaching including all amendments thereto of the Borrower certified as of a recent date by the Secretary of State of the State of Delaware (or certifying that there has been no change to the certificate of incorporation of the Borrower since the Closing Date) and a certificate as to the good standing of the Borrower as of a recent date, (x) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on such date (or certifying copies that there has been no change to the by-laws of its bylaws the Borrower since the Closing Date), (y) that attached is a true and complete copy of the resolutions duly adopted by the Board of its board Directors of directors the Borrower, or any duly authorized constituted committee thereof, authorizing the execution, delivery and performance of this Amendment, all documents executed in connection therewith, the borrowings thereunder, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect on such date and (z) as to the name, title incumbency and true specimen signature of each officer executing this Amendment and any document executed in connection therewith and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing such certificate;
(c) the Borrower executing shall have paid to the Amendment on behalf Term Loan Administrative Agent, for the account of the BorrowerRefinancing Lenders, a fee in an amount equal to 0.25% of the stated principal amount of the Refinancing Term Loans;
(d) the Term Loan Administrative Agent shall have received a certified copy notice of the certificate borrowing of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectRefinancing Term Loans;
(e) the Term Loan Administrative Agent shall have received a certificate, dated promissory note in form and substance reasonably acceptable to the Fifth Amendment Effective Date and signed Administrative Agent executed by the chief financial officer, treasurer or controller Borrower in favor of each Refinancing Lender requesting a promissory note;
(f) the representations and warranties set forth in Article 3 of the BorrowerCredit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the date hereof (both before and after giving effect to the transactions contemplated by this Amendment) with the same effect as though made on and as of the date hereof, certifying except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(g) the representations and warranties in Section 3 of this Amendment shall be true and correct in all material respects as of the date hereof;
(h) each Refinancing Lender and the Term Loan Administrative Agent shall have received at least 3 Business Days prior to the date hereof all documentation and other information about the Borrower and the Subsidiary Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act that has been requested in writing at least 5 Business Days prior to the date hereof; and
(wi) no Default or Event of Default exists, (x) shall exist on the date hereof before or after giving effect to the execution Refinancing Term Loans and delivery the use of proceeds thereof. The Borrowing of the Amendment and the funding of the Refinancing Term Loans shall be deemed to constitute a representation and warranty by the Borrower on the Fifth Amendment No. 1 Effective Date, neither the Borrower nor its Subsidiaries, taken Date as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
matters specified in paragraphs (f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(gi) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingabove.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date hereof when and if (such date being the “Effective Amendment Date”) when the following conditions are satisfied:
(a) The Administrative Agent shall have received (i) such fees the following, each dated as of the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates Date, in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs form and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel substance satisfactory to the Administrative Agent:
(i) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed counterparts of this Amendment, duly executed by the Borrower and Bank of America, N.A., in its capacity as the Administrative Agent, Lender, and LC Issuing Bank;
(iiiii) each certified copies of the following documents:
(a) executed counterparts resolutions of the Board of Directors of the Borrower approving this Amendment and the Amended Credit Agreement, and of all documents evidencing other necessary corporate action with respect to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Amended Credit Agreement;
(ciii) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Amendment and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the charter and the bylaws of the Borrower, attaching in each case in effect on such date; and certifying (C) that attached thereto are true and correct copies of its bylaws all governmental and of regulatory authorizations and approvals (if any) required for the resolutions of its board of directors or any duly authorized committee thereof, authorizing the due execution, delivery delivery, and performance of this Amendment, Amendment and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerAmended Credit Agreement;
(div) a certified copy favorable opinion of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of counsel for the Borrower and each other jurisdiction where as to such matters as any Lender through the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could Administrative Agent may reasonably be expected to have a Material Adverse Effectrequest;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(fv) a favorable written opinion of Xxxxx Xxxxx L.L.P., special New York counsel for the Borrower as to the Borrower, addressed to such matters as any Lender through the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall may reasonably request; and
(gvi) certified copies such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent or any Lender or LC Issuing Bank may reasonably request, all in form and substance satisfactory to the Administrative Agent or such other Lender or LC Issuing Bank (as the case may be).
(b) Each of all consents, approvals, authorizations, registrations the representations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, warranties in connection with the execution, delivery, performance, validity and enforceability Section 3 of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force true and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingcorrect.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date the following conditions precedent have been satisfied (the “Effective Date”):
(a) when the The Multi-Currency Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation duly executed and delivered by the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to Company and the Administrative Agent for the account of each Incremental Lender)Agents, (ii) reimbursement or payment the Consent and Affirmation, in the form attached hereto as Annex A, duly executed and delivered by each of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative AgentGuarantors, and (iii) each of Lender Consents, in the following documents:
form attached hereto as Annex B (a) the “Lender Consent”), duly executed counterparts to this Amendment from and delivered by Lenders constituting the Borrower and each Lender;Required Lenders.
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate The Multi-Currency Administrative Agent shall have received certified copies of resolutions of the Secretary or Assistant Secretary Board of Directors of the Borrower, attaching Company and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing each Guarantor approving the execution, delivery and performance of this AmendmentAmendment and the other documents to be executed in connection herewith.
(c) The Multi-Currency Administrative Agent shall have received from the Company, and certifying for the nameratable benefit of the Multi-Currency Lenders that have delivered a Lender Consent on or prior to 5:00 p.m. (New York time) on November 4, title and true signature 2009, an amendment fee equal to 0.25% of each officer such Multi-Currency Lender’s Multi-Currency Commitment Percentage of the Borrower executing Aggregate Multi-Currency Commitment on the Amendment on behalf of the Borrower;Effective Date.
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower Prior to and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery this Amendment, each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are shall be true and correct in all material respectsrespects on and as of the date hereof, as if made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(ze) since March 31, 2014, there No Default or Event of Default shall have been no change which has had occurred and be continuing on the date hereof prior to or could reasonably be expected after giving effect to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date hereof when and if (such date being the “Effective Amendment Date”) when the following conditions are satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the Amendment Date (iexcept for the financial statements referred to in clause (v) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective below), in form and substance satisfactory to the Administrative Agent or any and with one copy for each Swing Line Lender, each Fronting Bank and each Lender:
(i) Counterparts of its affiliates in connection with this Amendment, including without limitation duly executed by each of the fees payable Borrowers, the Swing Line Lenders, the Fronting Banks, Lenders constituting Majority Lenders and each Increasing Lender, Additional Lender and New Extension Lender, and all Notes (if any) requested by the Lenders pursuant to Section 2.18(d) of the Fifth Amendment Fee Letter (including without limitation fees Amended Credit Agreement, duly completed and executed by each Borrower and payable thereunder to the Administrative Agent for the account of each Incremental Lender), such Lenders;
(ii) reimbursement or payment Certified copies of its reasonable out-of-pocket costs (A) the resolutions of the Board of Directors of each Borrower approving this Amendment (including the extension of the Termination Date of any Lender, the Commitment Increase and expenses incurred the increase in such Borrower’s Borrower Sublimit, as applicable), the Amended Credit Agreement and the other Loan Documents (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or the Credit Agreement is to be, a party and (B) all documents evidencing any other necessary corporate action with respect to this Amendment (including reasonable feesthe extension of the Termination Date of any Lender, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower Commitment Increase and the Administrative Agentincrease in such Borrower’s Borrower Sublimit, as applicable), the Amended Credit Agreement, and such Loan Documents (as defined in the Amended Credit Agreement);
(iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (A) the names and true signatures of the officers of such Borrower authorized to sign this Amendment and each other Loan Document (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or is to become, a party and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the Organizational Documents of such Borrower, attaching in each case as in effect on such date, and certifying (C) that attached thereto are true and correct copies of its bylaws all governmental and of regulatory authorizations and approvals (including such Borrower’s Approval) required for (1) the resolutions of its board of directors or any duly authorized committee thereof, authorizing the due execution, delivery and performance by such Borrower of this Amendment, the Amended Credit Agreement, and certifying each other Loan Document (as defined in the nameAmended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, title or is to become, a party and true signature (2) in the case of each officer of FE, the Commitment Increase and the increase in the applicable Borrower executing the Amendment on behalf of the BorrowerSublimit;
(div) a certified copy of the A certificate of incorporation an Authorized Officer of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the each Borrower stating that both before and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to this Amendment (including the execution and delivery extension of the Amendment Termination Date of any Lender, the Commitment Increase and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the increase in such Borrower’s Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States CodeSublimit, as amended from time to time, applicable) (A) no event has occurred and is continuing that constitutes an Event of Default or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, Unmatured Default and (yB) all other representations and warranties of each Loan Party set forth made by such Borrower in the Loan Documents Amended Credit Agreement are true and correct in all material respects, except to the extent that for those made specifically as of another date, in which case such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effecttrue as of such other date;
(fv) a favorable written Copies of all the Disclosure Documents (it being agreed that those Disclosure Documents publicly available on the SEC’s XXXXX Database or on FE’s website no later than the Business Day immediately preceding the Amendment Date will be deemed to have been delivered under this clause (v));
(vi) (A) An opinion of Xxxx X. Xxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A-1 hereto, and (B) an opinion of Xxxxxxx X. Xxxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A-2 hereto;
(vii) An opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, special New York counsel for the Borrowers, substantially in the form of Exhibit B-1 hereto;
(viii) An opinion of Xxxxxx, Xxxxx L.L.P.and Bockius LLP, special New Jersey counsel to for JCP&L, substantially in the Borrowerform of Exhibit B-2 hereto;
(ix) An opinion of Hunton & Xxxxxxxx LLP, addressed to special Virginia counsel for PE, substantially in the form of Exhibit B-3 hereto;
(x) An opinion of Xxxx Xxxxx LLP, special Maryland counsel for PE, substantially in the form of Exhibit B-4 hereto;
(xi) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent and each Agent, substantially in the form of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestExhibit C hereto; and
(gxii) certified copies Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank, any Swing Line Lender or any other Lender may reasonably request, all in form and substance satisfactory to the Administrative Agent, such Fronting Bank, such Swing Line Lender or such other Lender (as the case may be).
(b) The Borrowers shall have paid all of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, the fees payable in connection accordance with the execution2014 Amendment Fee Letters.
(c) The Administrative Agent shall have received a copy of an amendment, deliverydated as of the date hereof, performanceto the FES/AESC Credit Agreement, validity among FES, AESC, the financial institutions party thereto as lenders, JPMorgan Chase Bank, N.A., as administrative agent, and enforceability the fronting banks and swing line lenders party thereto, evidencing the effectiveness of the proposed amendment, decrease and extension of the FES/AESC Credit Agreement substantially as described in the letter agreement, dated as of March 4, 2014 (as amended or modified from time to time), among FES, AESC and the financial institutions named therein as “Finance Parties”.
(d) Each of the representations and warranties in Section 5 of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force true and correct before and after giving effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingto this Amendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective as of May [ ], 2007 or such earlier date specified by the US Agent to Borrowers and Lenders (and evidenced by the date set forth on the date (the “Effective Date”first page of this Amendment) when the Administrative Agent shall have received but only if on such effective date:
(i) such fees as the Borrower Amendment has previously agreed to pay on or prior been signed by, and when counterparts hereof shall have been delivered to the date that this Amendment becomes effective US Agent or its counsel (by hand delivery, mail or telecopy) by the Parent, the Borrowers and the Lenders;
(ii) each Guarantor shall have delivered to the Administrative US Agent or any its counsel executed counterparts of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant Consent;
(iii) Borrowers shall have paid to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative US Agent for the account pro-rata benefit of each Incremental Lender)the Lenders an amendment fee equal to $90,000;
(iv) Borrowers shall have delivered to the US Agent or its counsel a certificate certifying that the charters, bylaws (iior other similar organizational documents) reimbursement or payment and resolutions authorizing the execution, delivery and performance by the Credit Parties of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or their obligations under the Credit Agreement (including reasonable feesand the other Loan Documents, charges and disbursements of King & Spalding LLP, counsel each in the form delivered to the Administrative Agent) for which invoices (including estimated expenses) Agents on the Closing Date, are in full force and effect and have not been presented to the Borrower at least two (2) days before the Effective Date unless amended, rescinded or otherwise agreed by the Borrower and the Administrative Agent, and (iii) each modified as of the following documents:
date of this Amendment (a) executed counterparts other than an amendment to Parent’s bylaws to increase the number of members of the board of directors from five to nine); the resolutions adopted with respect to this Amendment from the Borrower (or that no other resolutions have been adopted) and each Lender;
(b) an instrument, executed by each Loan Party, pursuant that no further authorization or consent is required to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing be obtained with respect to the execution, delivery and performance of this Amendment, the Consent and certifying the name, title Credit Agreement as amended hereby; and true signature of an incumbency certificate for each officer of Credit Party; and
(v) the US Borrower executing the Amendment on behalf of itself and the Borrower;
(d) other Credit Parties and the UK Borrower on behalf of itself shall have delivered to the US Agent or its counsel a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth contained herein and in the Loan Documents are true and correct in all material respects, respects as of such date (except to the extent that such representations and warranties specifically refer relate to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Partydate, in connection with the executionwhich case they were true, delivery, performance, validity correct and enforceability complete in all material respects as of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredearlier date), and no investigation Default or inquiry by any governmental authority regarding the Amendment shall Event of Default has occurred and will be ongoingcontinuing (after giving effect to this Amendment).
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date hereof when and if (such date being the “Effective Amendment Date”) when the following conditions are satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the Amendment Date (iexcept for the financial statements referred to in clause (v) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective below), in form and substance satisfactory to the Administrative Agent or any and with one copy for each Fronting Bank and each Lender:
(i) Counterparts of its affiliates in connection with this Amendment, including without limitation duly executed by each of the fees payable pursuant to Borrowers, the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), Fronting Banks and Lenders constituting Majority Lenders;
(ii) reimbursement Certified copies of the resolutions of the Board of Directors of each Borrower (or payment the equivalent authorization, in the case of its reasonable out-of-pocket costs FET) approving this Amendment (including the Extension), the Amended Credit Agreement, and expenses incurred the other Loan Documents (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which it is, or the Credit Agreement is to be, a party and of all documents evidencing any other necessary corporate action with respect to this Amendment (including reasonable feesthe Extension), charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative AgentAmended Credit Agreement, and such Loan Documents (as defined in the Amended Credit Agreement);
(iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (A) the names and true signatures of the officers of such Borrower authorized to sign this Amendment and each other Loan Document (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or is to become, a party and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the Organizational Documents of such Borrower, attaching in each case as in effect on such date, and certifying (C) that attached thereto are true and correct copies of its bylaws all governmental and of regulatory authorizations and approvals (including such Borrower’s Approval) required for the resolutions of its board of directors or any duly authorized committee thereof, authorizing the due execution, delivery and performance by such Borrower of this Amendment, the Amended Credit Agreement, and certifying each other Loan Document (as defined in the nameAmended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borroweror is to become, a party;
(div) a certified copy of the A certificate of incorporation an Authorized Officer of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the each Borrower stating that both before and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to this Amendment (including the execution Extension) (A) no event has occurred and delivery is continuing that constitutes an Event of the Amendment Default or an Unmatured Default and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (yB) all other representations and warranties of each Loan Party set forth made by such Borrower in the Loan Documents Amended Credit Agreement are true and correct in all material respects, except to the extent that for those made specifically as of another date, in which case such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effecttrue as of such other date;
(fv) a favorable written Copies of all the Disclosure Documents (it being agreed that those Disclosure Documents publicly available on the SEC’s XXXXX Database or on FE’s website no later than the Business Day immediately preceding the Amendment Date will be deemed to have been delivered under this clause (v));
(vi) An opinion of Xxxx X. Xxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A hereto;
(vii) An opinion of Akin Gump Xxxxxxx Xxxxx Xxxxx L.L.P.& Xxxx LLP, special counsel to for the BorrowerBorrowers, addressed to substantially in the form of Exhibit B-1 hereto;
(viii) An opinion of DLA Piper LLP (US), special Maryland counsel for TrAILCo, substantially in the form of Exhibit B-2 hereto;
(ix) An opinion of Hunton & Xxxxxxxx LLP, special Virginia counsel for TrAILCo, substantially in the form of Exhibit B-3 hereto;
(x) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent and each Agent, substantially in the form of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestExhibit C hereto; and
(gxi) certified copies Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank or any other Lender may reasonably request, all in form and substance satisfactory to the Administrative Agent, such Fronting Bank or such other Lender (as the case may be).
(b) The Borrowers shall have paid all of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, the fees payable in connection accordance with the execution, delivery, performance, validity 2013 Amendment Fee Letters.
(c) Each of the representations and enforceability warranties in Section 4 of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force true and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingcorrect.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date hereof when and if (such date being the “Effective Amendment Date”) when the following conditions are satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the Amendment Date (iexcept for the financial statements referred to in clause (v) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective below), in form and substance satisfactory to the Administrative Agent or any and with one copy for each Fronting Bank and each Lender:
(i) Counterparts of its affiliates in connection with this Amendment, including without limitation duly executed by each of the fees payable Borrowers, the Fronting Banks, Lenders constituting Majority Lenders and each New Extension Lender, and all Notes (if any) requested by the Lenders pursuant to Section 2.18(d) of the Fifth Amendment Fee Letter (including without limitation fees Amended Credit Agreement, duly completed and executed by each Borrower and payable thereunder to the Administrative Agent for the account of each Incremental Lender), such Lenders;
(ii) reimbursement Certified copies of (A) the resolutions of the Board of Directors of each Borrower (or payment the equivalent authorization, in the case of its reasonable out-of-pocket costs FET) approving this Amendment (including the extension of the Termination Date of any Lender and expenses incurred the increase in such Borrower’s Borrower Sublimit, as applicable), the Amended Credit Agreement, and the other Loan Documents (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or the Credit Agreement is to be, a party and (B) all documents evidencing any other necessary corporate action with respect to this Amendment (including reasonable fees, charges and disbursements the extension of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Termination Date unless otherwise agreed by the Borrower of any Lender and the Administrative Agentincrease in such Borrower’s Borrower Sublimit, as applicable), the Amended Credit Agreement, and such Loan Documents (as defined in the Amended Credit Agreement);
(iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (A) the names and true signatures of the officers of such Borrower authorized to sign this Amendment and each other Loan Document (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or is to become, a party and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the Organizational Documents of such Borrower, attaching in each case as in effect on such date, and certifying (C) that attached thereto are true and correct copies of its bylaws all governmental and of regulatory authorizations and approvals (including such Borrower’s Approval) required for (1) the resolutions of its board of directors or any duly authorized committee thereof, authorizing the due execution, delivery and performance by such Borrower of this Amendment, the Amended Credit Agreement, and certifying each other Loan Document (as defined in the nameAmended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, title or is to become, a party and true signature (2) in the case of each officer of ATSI and TrAILCo, the increase in the applicable Borrower executing the Amendment on behalf of the BorrowerSublimit;
(div) a certified copy of the A certificate of incorporation an Authorized Officer of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the each Borrower stating that both before and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to this Amendment (including the execution and delivery extension of the Amendment Termination Date of any Lender and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the increase in such Borrower’s Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States CodeSublimit, as amended from time to time, applicable) (A) no event has occurred and is continuing that constitutes an Event of Default or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, Unmatured Default and (yB) all other representations and warranties of each Loan Party set forth made by such Borrower in the Loan Documents Amended Credit Agreement are true and correct in all material respects, except to the extent that for those made specifically as of another date, in which case such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effecttrue as of such other date;
(fv) a favorable written Copies of all the Disclosure Documents (it being agreed that those Disclosure Documents publicly available on the SEC’s XXXXX Database or on FE’s website no later than the Business Day immediately preceding the Amendment Date will be deemed to have been delivered under this clause (v));
(vi) An opinion of Xxxx X. Xxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A hereto;
(vii) An opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, special counsel for the Borrowers, substantially in the form of Exhibit B-1 hereto;
(viii) An opinion of Xxxx Xxxxx L.L.P.LLP, special Maryland counsel to for TrAILCo, substantially in the Borrowerform of Exhibit B-2 hereto;
(ix) An opinion of Hunton & Xxxxxxxx LLP, addressed to special Virginia counsel for TrAILCo, substantially in the form of Exhibit B-3 hereto;
(x) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent and each Agent, substantially in the form of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestExhibit C hereto; and
(gxi) certified copies Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank or any other Lender may reasonably request, all in form and substance satisfactory to the Administrative Agent, such Fronting Bank or such other Lender (as the case may be).
(b) The Borrowers shall have paid all of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, the fees payable in connection accordance with the execution, delivery, performance, validity 2014 Amendment Fee Letter.
(c) Each of the representations and enforceability warranties in Section 4 of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force true and correct before and after giving effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingto this Amendment.
Appears in 1 contract
Samples: Credit Agreement Amendment (FirstEnergy Solutions Corp.)
Conditions to Effectiveness of this Amendment. It is understood and agreed that Notwithstanding any other provision of this Amendment, this Amendment shall not become effective on effective, and the date (Borrower and the “Effective Date”) when Parent Guarantor shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documentsfollowing:
(a) duly authorized, executed and delivered counterparts to this Amendment from each of the Borrower Borrower, the Parent Guarantor and each Lender;the Required Lenders; and
(b) an instrumenta duly authorized, executed by each Loan Party, pursuant and delivered amendment to which such Loan Party reaffirms its obligations under the Security Agreement, Mortgage in form and substance satisfactory to the Subsidiary Guaranty Agreement and Agent (the Pledge Agreement“Amendment to Mortgage”);
(c) a certificate of the Secretary or Assistant Secretary of the Borrowerduly authorized, attaching executed and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of delivered Working Capital Facility Notes for each officer of the Borrower executing the Amendment on behalf of the BorrowerLender providing an Additional Working Capital Facility Commitment;
(d) a certified copy evidence of payment of the certificate of incorporation of Minnesota Mortgage Tax with respect to the Borrower, together with certificates of good standing or existence, as may be available from Amendment to Mortgage satisfactory to the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectAgent;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect duly issued endorsement to the execution and delivery of Project Title Insurance Policy with respect to the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse EffectMortgage;
(f) a favorable written duly authorized, executed and delivered letter agreement regarding fees related to the additional Working Capital Facility Commitment Amount provided for under this Amendment (the “Additional Working Capital Facility Commitment Fee Letter”);
(g) an opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed Borrower in form and substance satisfactory to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestAgent; and
(gh) certified copies the fees payable on the Fourth Amendment Date pursuant to the Additional Working Capital Facility Commitment Fee Letter, and payment or reimbursement of all consents, approvals, authorizations, registrations costs and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any expenses of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall Agent which have expired, and no investigation or inquiry by any governmental authority regarding been invoiced not later than one Business Day prior to the Fourth Amendment shall be ongoingDate.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date hereof when and if (such date being the “Effective Amendment Date”) when the following conditions are satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the Amendment Date (iexcept for the financial statements referred to in clause (v) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective below), in form and substance satisfactory to the Administrative Agent or any and with one copy for each Swing Line Lender, each Fronting Bank and each Lender:
(i) Counterparts of its affiliates in connection with this Amendment, including without limitation duly executed by each of the fees payable pursuant to Borrowers, the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to Swing Line Lenders, the Administrative Agent for the account of Fronting Banks, Lenders constituting Majority Lenders and each Incremental Additional Commitment Lender), ;
(ii) reimbursement or payment Certified copies of its reasonable out-of-pocket costs the resolutions of the Board of Directors of each Borrower approving this Amendment (including the Extension), the Amended Credit Agreement, and expenses incurred the other Loan Documents (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which it is, or the Credit Agreement is to be, a party and of all documents evidencing any other necessary corporate action with respect to this Amendment (including reasonable feesthe Extension), charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative AgentAmended Credit Agreement, and such Loan Documents (as defined in the Amended Credit Agreement);
(iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (A) the names and true signatures of the officers of such Borrower authorized to sign this Amendment and each other Loan Document (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or is to become, a party and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the Organizational Documents of such Borrower, attaching in each case as in effect on such date, and certifying (C) that attached thereto are true and correct copies of its bylaws all governmental and of regulatory authorizations and approvals (including such Borrower’s Approval) required for the resolutions of its board of directors or any duly authorized committee thereof, authorizing the due execution, delivery and performance by such Borrower of this Amendment, the Amended Credit Agreement, and certifying each other Loan Document (as defined in the nameAmended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borroweror is to become, a party;
(div) a certified copy of the A certificate of incorporation an Authorized Officer of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the each Borrower stating that both before and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to this Amendment (including the execution Extension) (A) no event has occurred and delivery is continuing that constitutes an Event of the Amendment Default or an Unmatured Default and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (yB) all other representations and warranties of each Loan Party set forth made by such Borrower in the Loan Documents Amended Credit Agreement are true and correct in all material respects, except to the extent that for those made specifically as of another date, in which case such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effecttrue as of such other date;
(fv) a favorable written Copies of all the Disclosure Documents (it being agreed that those Disclosure Documents publicly available on the SEC’s XXXXX Database or on FE’s website no later than the Business Day immediately preceding the Amendment Date will be deemed to have been delivered under this clause (v));
(vi) An opinion of Xxxx X. Xxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A hereto;
(vii) An opinion of Akin Gump Xxxxxxx Xxxxx Xxxxx L.L.P.& Xxxx LLP, special counsel for the Borrowers, substantially in the form of Exhibit B hereto;
(viii) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent, substantially in the form of Exhibit C hereto; and
(ix) Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank, any Swing Line Lender or any other Lender may reasonably request, all in form and substance satisfactory to the BorrowerAdministrative Agent, addressed to such Fronting Bank, such Swing Line Lender or such other Lender (as the case may be).
(b) The Borrowers shall have paid all of the fees payable in accordance with the 2013 Amendment Fee Letter.
(c) The Administrative Agent shall have received a copy of a letter agreement, dated as of May 8, 2013, among the Borrowers, the Administrative Agent and each any “Lender” (as defined in the Credit Agreement) party to the Credit Agreement that will not be a Lender under the Amended Credit Agreement, evidencing the termination of the Lenders, and covering “Commitment” (as defined in the Credit Agreement) of such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and“Lender”.
(gd) certified copies Each of all consents, approvals, authorizations, registrations the representations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, warranties in connection with the execution, delivery, performance, validity and enforceability Section 4 of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force true and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingcorrect.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date the following conditions precedent have been satisfied (the “"Effective Date”"):
(a) when the The Administrative Agent shall have received (i) such fees as this Amendment, duly executed and delivered by the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to Borrower, the Administrative Agent or any and Lenders constituting the Requisite Lenders and (ii) the Consent and Affirmation, in the form attached hereto as Annex A, duly executed and delivered by each of its affiliates the Guarantors.
(b) The Administrative Agent shall have received (i) a Guarantee Supplement, in connection substantially the form of Exhibit A to the Guaranty, duly executed and delivered by CAS Inc., Impact Science & Technology, Inc. and NexGen Communications LLC (collectively, the "Additional Subsidiaries") and (ii) a Joinder Agreement, in substantially the form of Annex 2 to the Pledge and Security Agreement (the "Joinder Agreement"), together with this Amendmentall schedules thereto, including without limitation duly executed and delivered by the fees payable Additional Subsidiaries.
(c) The Administrative Agent shall have received all certificates, instruments and other documents representing all Pledged Stock and all Pledged Debt Instruments being pledged pursuant to the Fifth Amendment Fee Letter Joinder Agreement, together with (including without limitation fees payable thereunder to i) in the Administrative Agent for the account case of each Incremental Lender)certificated Pledged Stock, undated stock powers endorsed in blank and (ii) reimbursement or payment in the case of its reasonable outPledged Debt Instruments, endorsements in blank.
(d) The Administrative Agent shall have received a legal opinion from in-of-pocket costs house counsel to the Borrower relating to the Additional Subsidiaries, which opinion shall be in form and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel substance reasonably satisfactory to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;.
(e) a certificateThe Administrative Agent shall have received evidence that the UCC-1 financing statement filed by Sovereign Bank with respect to Impact Science & Technology, dated the Fifth Amendment Effective Date and signed by the chief financial officerInc. has been terminated.
(f) After giving effect to this Amendment, treasurer or controller each of the Borrowerrepresentations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the date hereof, certifying that as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(wg) After giving effect to this Amendment, no Default or Event of Default exists, (x) after giving effect to the execution shall have occurred and delivery of the Amendment and the funding of the Term Loans be continuing on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoinghereof.
Appears in 1 contract
Samples: Credit Agreement (Edo Corp)
Conditions to Effectiveness of this Amendment. It is understood and agreed that Article I of this Amendment shall become effective on when, and only when, the date following conditions have been satisfied as reasonably determined by Lender in its sole discretion (the “Third Amendment Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:):
(a) Lender shall have received a duly authorized and executed counterparts to copy of this Amendment from each of the Borrower Borrowers and each Lender;the Guarantors.
(b) The Lender shall have received the Second Add-On Term Note duly executed and delivered by an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under authorized officer of the Security Agreement, Borrowers in favor of the Subsidiary Guaranty Agreement and the Pledge Agreement;Lender.
(c) a certificate Lender shall have received the consent of the Secretary or Assistant Secretary Revolving Loan Agent, on behalf of the Borrowerlenders under the Revolving Loan Agreement, attaching evidencing their consent and certifying copies approval of its bylaws and the transactions contemplated by this Amendment including, without limitation, amending the Intercreditor Agreement to reflect the same.
(d) Lender shall have received a copy of the resolutions of its the board of directors (or any duly authorized committee thereof, equivalent authority) of each Loan Party authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title and true signature other Amendment Documents to which it is a party as certified by the Secretary or an Assistant Secretary of each officer Loan Party as of the Borrower executing Third Amendment Effective Date; and, such certificate shall state that the Amendment on behalf resolutions thereby certified have not been amended, modified, revoked or rescinded as of the Borrower;date of such certificate.
(de) a certified copy of the certificate of incorporation of the Borrower, together with Lender shall have received good standing certificates or certificates of good standing status or existencecertificates of compliance, as may be available from applicable, for each Loan Party dated as of a recent date prior to the Third Amendment Effective Date, issued by the Secretary of State or other appropriate official of the each such Loan Party’s jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer incorporation or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;formation.
(f) a favorable written opinion The representations and warranties set forth in Section 2.1 of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent this Amendment shall be true and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; andcorrect.
(g) certified copies Borrowers shall have paid the Amendment Fee and, upon funding of the Second Add-On Term Loan, the Second Add-On Funding Fee to Lender in immediately available funds.
(h) Borrowers shall have paid all consentsreasonable out-of-pocket fees, approvals, authorizations, registrations costs and filings and orders required or advisable to be made or obtained under any Requirement of Law, or expenses incurred by any Contractual Obligation of each Loan Party, Lender in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any and each Other Document (including, without limitation, reasonable legal fees and expenses of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingcounsel to Lender).
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Noteholders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the Company shall have no rights hereunder, until satisfaction of the condition set forth in the first sentence following clause (e) of this Section 4 and until each Noteholder shall have received:
(a) a copy of this Amendment executed by the Company, the Subsidiary Guarantors, the Required Holders and Gores Radio;
(b) a copy of the fully executed Fourth Bank Amendment in form and substance reasonably satisfactory to the Required Holders (such satisfaction to be evidenced by the execution and delivery of this Amendment by the Required Holders) (a true, correct and complete copy of which is attached hereto as Annex 1);
(c) a copy of the fully executed Gores Notes Subordination Agreement in the form attached hereto as Annex 2;
(d) a copy of the fully executed First Amendment to Amended and Restated Intercreditor and Collateral Trust Agreement, dated as of the date hereof, by and among the Company, the Subsidiary Guarantors, the Collateral Trustee and each of the Noteholders party thereto in the form attached hereto as Annex 3 (the “Effective DateIntercreditor Amendment”); and
(e) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King counsel to, and the financial advisor for, the Noteholders and incurred in connection with this Amendment (as set forth in invoices provided by Xxxxxxx XxXxxxxxx LLP and Xxxxxx, Del Genio, Xxxxx & Spalding LLPCo., counsel LLC, respectively, to the Administrative Agent) for which invoices (including estimated expenses) have been presented Company on or prior to the Borrower at least two (2) days before date hereof). In addition, all corporate and other proceedings in connection with the Effective Date unless otherwise agreed transactions contemplated by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from and all documents and instruments incident to such transactions shall be reasonably satisfactory to the Borrower Required Holders and each Lender;
their special counsel (b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required satisfaction to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed evidenced by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of this Amendment by the Amendment and the funding of the Term Loans Required Holders). The date on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of which all such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except conditions to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability effectiveness of this Amendment or any of have been met is referred to herein as the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing“Effective Date”.
Appears in 1 contract
Samples: Securities Purchase Agreement (Westwood One Inc /De/)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date as of December 6, 2016 (the “Amendment No. 2 Effective Date”) when when:
(a) this Amendment shall have been executed and delivered by the Borrower, the Subsidiary Loan Parties, each Second Amendment Refinancing Lender and the Term Loan Administrative Agent;
(b) the Term Loan Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower dated the date hereof certifying (w) that attached thereto is a true and complete copy of the certificate of incorporation, attaching including all amendments thereto of the Borrower certified as of a recent date by the Secretary of State of the State of Delaware (or certifying that there has been no change to the certificate of incorporation of the Borrower since the Amendment No. 1 Effective Date) and a certificate as to the good standing of the Borrower as of a recent date, (x) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on such date (or certifying copies that there has been no change to the by-laws of its bylaws the Borrower since the Amendment No. 1 Effective Date), (y) that attached is a true and complete copy of the resolutions duly adopted by the Board of its board Directors of directors the Borrower, or any duly authorized constituted committee thereof, authorizing the execution, delivery and performance of this Amendment, all documents executed in connection therewith, the borrowings thereunder, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect on such date and (z) as to the name, title incumbency and true specimen signature of each officer executing this Amendment and any document executed in connection therewith and countersigned by another officer as to the incumbency and specimen signature of the Borrower Secretary or Assistant Secretary executing such certificate;
(c) the Term Loan Administrative Agent shall have received a notice of borrowing of Second Amendment on behalf of the BorrowerRefinancing Term Loans;
(d) the Term Loan Administrative Agent shall have received a certified copy of promissory note in form and substance reasonably acceptable to the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of Administrative Agent executed by the Borrower and in favor of each other jurisdiction where the Borrower is required to be qualified to do business as Second Amendment Refinancing Lender requesting a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectpromissory note;
(e) a certificate, dated the Fifth Amendment Effective Date representations and signed by the chief financial officer, treasurer or controller warranties set forth in Article 3 of the BorrowerCredit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the date hereof (both before and after giving effect to the transactions contemplated by this Amendment) with the same effect as though made on and as of the date hereof, certifying except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(f) the representations and warranties in Section 3 of this Amendment shall be true and correct in all material respects as of the date hereof;
(g) each Second Amendment Refinancing Lender and the Term Loan Administrative Agent shall have received at least 3 Business Days prior to the date hereof all documentation and other information about the Borrower and the Subsidiary Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act that has been requested in writing at least 5 Business Days prior to the date hereof; and
(wh) no Default or Event of Default exists, (x) shall exist on the date hereof before or after giving effect to the execution Second Amendment Refinancing Term Loans and delivery the use of proceeds thereof. The Borrowing of the Second Amendment and the funding of the Refinancing Term Loans shall be deemed to constitute a representation and warranty by the Borrower on the Fifth Amendment No. 2 Effective Date, neither the Borrower nor its Subsidiaries, taken Date as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date matters specified in paragraphs (e) and (zh) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingabove.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date (such date, the “Second Amendment Effective Date”) when that the following conditions have been satisfied:
(a) The Administrative Agent and the Consenting Lenders (collectively constituting the Required Lenders immediately prior to and upon the Second Amendment Effective Date) (or their respective counsel) shall have received either (i) a counterpart of this Amendment signed on behalf of the Borrower, the Administrative Agent and each Consenting Lender or (ii) written evidence satisfactory to the Administrative Agent (which may include fax 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 and the Consenting Lenders (or their respective counsel) shall have received either (i) a counterpart of the Intercreditor Agreement signed on behalf of the Borrower, the Administrative Agent and the ABL Administrative Agent or (ii) written evidence satisfactory to the Administrative Agent (which may include fax or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of the Intercreditor Agreement.
(c) The Consenting Lenders and the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its all reasonable and documented (in summary format) out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable and documented (in summary format) fees, charges and disbursements of King Kxxxxxxx & Spalding Exxxx LLP and Holland & Knight LLP) required to be reimbursed or paid by the Loan Parties under any Loan Document.
(d) The Administrative Agent shall have received, on behalf of itself and the Consenting Lenders on the Second Amendment Effective Date, a written opinion from Hxxxxx and Bxxxx, LLP, special counsel for Holdings and the Borrower (A) dated as of the date hereof, (B) addressed to the Administrative AgentAgent and the Consenting Lenders on the date hereof and (C) for which invoices (including estimated expenses) have been presented in form and substance reasonably satisfactory to the Borrower at least two (2) days before Required Lenders and covering such other matters relating to the Effective Date unless otherwise agreed by Loan Documents and the Amendment as the Required Lenders shall reasonably request, and each of Holdings and the Borrower hereby instructs its counsel to deliver such opinions.
(e) The Consenting Lenders and the Administrative AgentAgent (or their respective counsel) shall have received in the case of each Loan Party each of the items referred to in clauses (i), and (ii), (iii) each of the following documentsand (iv) below:
(ai) executed counterparts to this Amendment from a copy of the Borrower and each Lender;
(b) an instrumentcertificate or articles of incorporation, executed by certificate of limited partnership or certificate of formation, including all amendments thereto, of each Loan Party, pursuant 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 which the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreementas of a recent date from such Secretary of State (or other similar official);
(cii) a certificate of the Secretary secretary or Assistant Secretary assistant secretary or similar officer of each Loan Party dated the Second Amendment Effective Date and certifying:
(1) that attached thereto is a true and complete copy of the Borrowerby-laws (or limited partnership agreement, attaching limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Second Amendment Effective Date
(2) that attached thereto is a true and certifying copies complete copy of its bylaws and of resolutions duly adopted by the resolutions of its board of directors (or any duly authorized committee thereof, equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of this the Amendment, the New ABL Facility and certifying the nameFILO B Facility and that such resolutions have not been modified, title rescinded or amended and true are in full force and effect on the Second Amendment Effective Date,
(3) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(4) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party,
(5) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above;
(iv) a certificate of a Responsible Officer of the Borrower executing the Amendment on behalf certifying that as of the BorrowerSecond Amendment Effective Date the representations and warranties set forth in Section 4 hereof are true and correct;
(df) The Consenting Lenders and the Administrative Agent (or their respective counsel) shall have received a certified copy solvency certificate substantially in the form of Exhibit D to the Credit Agreement and signed by a Responsible Officer of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectParent;
(eg) The Consenting Lenders and the Administrative Agent (or their respective counsel) shall have received executed copies of (i) the Perfection Certificate delivered to the New ABL Administrative Agent, (ii) the Borrowing Base Certificate delivered to the New ABL Administrative Agent and (iii) a certificatecustomary payoff letter and customary related termination statements, dated discharges and other release documentation evidencing the Fifth termination of the Liens (as defined in the Existing ABL Credit Agreement) in and to the properties and assets of the Loan Parties and their Subsidiaries in relation to the Existing ABL Credit Agreement, each of which shall be in form and substance satisfactory to the Consenting Lenders in all respects;
(h) The Consenting Lenders and the Administrative Agent (or their respective counsel) shall have received the Financial Performance Projections, each of which shall be in form and substance satisfactory to the Consenting Lenders in all respects;
(i) Availability as of the Second Amendment Effective Date and signed by the chief financial officerDate, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of Transactions occurring on the Second Amendment and Effective Date, shall not be less than $25,000,000.
(j) On the Second Amendment Effective Date, substantially concurrently with the funding of the Term Loans on the Fifth Amendment Effective DateNew ABL Facility, neither the Borrower nor FILO A Facility and FILO B Facility, Holdings and its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there Subsidiaries shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to paid in full the Borrower, addressed to obligations under the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestExisting ABL Credit Agreement; and
(gk) certified The Consenting Lenders and the Administrative Agent (or their respective counsel) shall have received executed copies of the New ABL Credit Agreement and all consentsmaterial ABL Loan Documents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement each of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders which shall be in full force form and effect substance satisfactory to the Consenting Lenders in all respects.
(l) The Borrower and all applicable waiting periods each Consenting Lender shall have expired, executed and no investigation or inquiry by any governmental authority regarding delivered a duly completed Assignment and Acceptance giving effect to the Amendment shall be ongoingLoan Repurchase.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective as of May 31, 2007 or such earlier date specified by the US Agent to Borrowers and Lenders (and evidenced by the date set forth on the date (the “Effective Date”first page of this Amendment) when the Administrative Agent shall have received but only if on such effective date:
(i) such fees as the Borrower Amendment has previously agreed to pay on or prior been signed by, and when counterparts hereof shall have been delivered to the date that this Amendment becomes effective US Agent or its counsel (by hand delivery, mail or telecopy) by the Parent, the Borrowers and the Lenders;
(ii) each Guarantor shall have delivered to the Administrative US Agent or any its counsel executed counterparts of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant Consent;
(iii) Borrowers shall have paid to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative US Agent for the account pro-rata benefit of each Incremental Lender)the Lenders an amendment fee equal to $90,000;
(iv) Borrowers shall have delivered to the US Agent or its counsel a certificate certifying that the charters, bylaws (iior other similar organizational documents) reimbursement or payment and resolutions authorizing the execution, delivery and performance by the Credit Parties of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or their obligations under the Credit Agreement (including reasonable feesand the other Loan Documents, charges and disbursements of King & Spalding LLP, counsel each in the form delivered to the Administrative Agent) for which invoices (including estimated expenses) Agents on the Closing Date, are in full force and effect and have not been presented to the Borrower at least two (2) days before the Effective Date unless amended, rescinded or otherwise agreed by the Borrower and the Administrative Agent, and (iii) each modified as of the following documents:
date of this Amendment (a) executed counterparts other than an amendment to Parent’s bylaws to increase the number of members of the board of directors from five to nine); the resolutions adopted with respect to this Amendment from the Borrower (or that no other resolutions have been adopted) and each Lender;
(b) an instrument, executed by each Loan Party, pursuant that no further authorization or consent is required to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing be obtained with respect to the execution, delivery and performance of this Amendment, the Consent and certifying the name, title Credit Agreement as amended hereby; and true signature of an incumbency certificate for each officer of Credit Party; and
(v) the US Borrower executing the Amendment on behalf of itself and the Borrower;
(d) other Credit Parties and the UK Borrower on behalf of itself shall have delivered to the US Agent or its counsel a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth contained herein and in the Loan Documents are true and correct in all material respects, respects as of such date (except to the extent that such representations and warranties specifically refer relate to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Partydate, in connection with the executionwhich case they were true, delivery, performance, validity correct and enforceability complete in all material respects as of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredearlier date), and no investigation Default or inquiry by any governmental authority regarding the Amendment shall Event of Default has occurred and will be ongoingcontinuing (after giving effect to this Amendment).
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “Fourth Amendment Effective Date”):
(a) when The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the Parent Borrower and each Lender party hereto (who, for the avoidance of doubt, constitute Supermajority Lenders).
(b) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Parent Borrower, attaching dated the date hereof, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofattachments, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of including the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from Parent Borrower certified by the Secretary of State relevant authority of the jurisdiction of organization of the Parent Borrower or a certification that such documents have not been amended since such documents were previously delivered to the Administrative Agent and each other (ii) a long-form good standing certificate for the Parent Borrower from the applicable jurisdiction where the Borrower is of organization.
(c) The Administrative Agent shall have received all fees required to be qualified to do business as a foreign corporation where paid, and all expenses for which invoices have been presented (including the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;reasonable and documented out-of-pocket fees and expenses of legal counsel), on or before the Fourth Amendment Effective Date.
(ed) a certificate, dated the Fifth After giving effect to this Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (wi) no Default or Event of Default exists, shall have occurred and be continuing and (xii) after giving effect to the execution and delivery each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are shall be true and correct in all material respectsrespects (or, except to the extent that if such representations and warranties specifically refer are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (zor, if such representations and warranties are qualified by materiality, in all respects) since March 31, 2014, there as of such earlier date).
(e) The Administrative Agent shall have received a certificate signed by a duly authorized officer of the Parent Borrower certifying that the conditions specified in clause (d) of this Section 3 have been no change which has had or could reasonably be expected to have a Material Adverse Effect;satisfied as of the Fourth Amendment Effective Date.
(f) a favorable written opinion The Borrowers shall make any prepayment of Xxxxx Xxxxx L.L.P., counsel Loans required pursuant to the Borrower, addressed to the Administrative Agent and each Section 2.6(a) of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein Credit Agreement as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability a result of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder or to the Administrative Agent for the account benefit of each Incremental Lender)the Lenders in connection with this Amendment, (ii) reimbursement or payment of its reasonable out-of-pocket the costs and expenses of the Administrative Agent incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iii) each of the following documents:documents (the first date on which all such conditions have been satisfied, the “Effective Date”):
(a) executed counterparts to this Amendment from the Borrower Borrower, each Subsidiary party hereto and each Lenderthe Lenders;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the BorrowerBorrower and each Subsidiary party hereto, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower or Subsidiaries, as applicable, executing this Amendment and confirming that the Amendment on behalf articles of incorporation and bylaws have not changed since the Closing Date;
(c) a favorable written opinion of counsel to the Borrower, addressed to the Administrative Agent, the Issuing Bank and each of the BorrowerLenders, and covering such matters relating to the Loan Parties, this Amendment and the transactions contemplated herein as the Administrative Agent shall reasonably request;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestSubsidiary party hereto; and
(ge) certified copies of all consents, approvals, authorizations, registrations and filings and orders orders, if any, required or advisable to be made or obtained under any Requirement of Applicable Law, or by any Contractual Obligation material contractual obligation of the Borrower and each Loan PartySubsidiary party hereto, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated therebyhereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment Governmental Authority related thereto shall be ongoing.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Broker/Dealer shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower Broker/Dealer has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or Agent, any of its affiliates or the Lenders in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before extent invoiced prior to the Effective Date unless otherwise agreed by the Borrower and the Administrative Agentdate hereof, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower Broker/Dealer and the Lenders;
(b) amended and restated (if applicable) Revolving Notes in the form attached hereto as Exhibit A executed by the Broker/Dealer in favor of each Lender;
(bc) an instrumentsuch certificates of resolutions or other action, executed by incumbency certificates and/or other certificates of Responsible Officers of the Broker/Dealer as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Party, pursuant Documents to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) Broker/Dealer is a certificate of the Secretary party or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borroweris to be a party;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower Broker/Dealer and each other jurisdiction where guarantor of the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectObligations;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, (addressed to the Administrative Agent and each the Lenders and dated the Effective Date) of Weil, Gotshal & Xxxxxx LLP, New York counsel and/or in-house counsel to the Lenders, and Broker/Dealer covering such other matters relating to the BorrowerBroker/Dealer, the this Amendment and or the transactions contemplated therein hereby as the Administrative Agent or the Required Lenders shall reasonably request;
(f) executed counterparts to an amendment and reaffirmation of that certain Guaranty Agreement, dated as of March 3, 2014, among Parent, Trinity Acquisition PLC, certain other subsidiaries of the Parent party thereto as guarantors and the Administrative Agent, in the form of Exhibit B attached hereto and made a part hereof (the “Guaranty Amendment”); and
(g) certified copies of evidence that all consents, approvals, authorizations, registrations governmental and filings third-party consents and orders required or advisable approvals to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any have been obtained (all of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders which shall be in full force and effect and all applicable final, with no waiting periods shall have expired, and no investigation period to expire or ongoing governmental inquiry by any governmental authority regarding the Amendment shall be ongoingor investigation).
Appears in 1 contract
Samples: Revolving Note and Cash Subordination Agreement (Willis Towers Watson PLC)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Third Amendment shall become effective on and as of the date (such date the “Third Amendment Effective Date”) when of the execution and delivery of this Third Amendment by the Borrower, the Administrative Agent and the Required Lenders and satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received (i) such fees as the Borrower payment, for distribution to each Lender that has previously agreed to pay on or prior to the date that signed and delivered this Third Amendment becomes effective to the Administrative Agent by not later than 12:00 Noon (New York City time) on November 27, 2006 (or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement such later time or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise date as agreed by the Borrower and the Administrative Agent), and (iii) each of an amendment fee equal to 0.250% of the following documents:
(a) executed counterparts Aggregate Exposure of such Lender then in effect immediately prior to this the Third Amendment from the Borrower and each Lender;Effective Date.
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement The Lenders and the Pledge Agreement;Administrative Agent shall have received all other fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), in connection with the Third Amendment.
(c) The Administrative Agent shall have received (i) a certificate of the Secretary or Assistant Secretary or similar officer of the Borrower, attaching dated the Third Amendment Effective Date, and certifying copies (A) that attached thereto is a true and complete copy of its bylaws and resolutions duly adopted by the Board of Directors (or equivalent governing body) of the resolutions of Borrower (or its board of directors or any duly authorized committee thereof, managing member) authorizing the execution, delivery and performance of this Third Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations resolutions have not been modified, rescinded or amended and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be are in full force and effect on the Third Amendment Effective Date, (B) as to the incumbency and all applicable waiting periods specimen signature of each officer executing this Third Amendment or any other document delivered in connection herewith on behalf of the Borrower and (C) as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing such certificate; and (ii) a good standing certificate for the Borrower from its jurisdiction of organization.
(d) The Administrative Agent shall have expiredreceived an Acknowledgement and Consent in the form of Exhibit A attached hereto (the “Acknowledgement and Consent”), executed and no investigation or inquiry delivered by any governmental authority regarding each Loan Party other than the Amendment shall be ongoingBorrower.
Appears in 1 contract
Samples: Credit Agreement (Educate Inc)
Conditions to Effectiveness of this Amendment. It is understood and agreed that This Amendment shall be effective as of the date hereof, upon the satisfaction (or waiver) of the following conditions precedent:
(a) the Administrative Agent shall have received counterparts to this Amendment duly executed and delivered by the Company, each Guarantor, the Supplemental Term Lender and the Requisite Lenders;
(b) the Company shall become effective have paid all costs, fees and expenses incurred by the Administrative Agent in connection with the preparation of this Amendment;
(c) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) after giving effect to this Amendment, the representations and warranties contained herein and in the Credit Documents shall be true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(e) Company and its Subsidiaries shall have delivered to Administrative Agent an originally executed certificate as to the matters set forth in Section 3.2 (a)(iii) and (iv) of the Credit Agreement as of such date after giving effect to the Amendment;
(f) Administrative Agent shall have received a fully executed and delivered Funding Notice for the Supplemental Term Loan;
(g) Administrative Agent shall have received satisfactory evidence that no amounts are outstanding under the Atlantic Existing Credit Facility, and that the same shall have been terminated;
(h) Company and each Supplemental Term Loan Lender shall have executed and delivered a Warrant Agreement substantially in the form of Exhibit L to the Credit Agreement relating to the Supplemental Warrants (the “Effective Date”"SUPPLEMENTAL WARRANT AGREEMENT"), and the Company shall have issued the Supplemental Warrants to the Supplemental Term Loan Lenders; and
(i) when the Administrative Agent shall have received (i) signature and incumbency certificates of the officers of such fees as the Borrower has previously agreed to pay on or prior to the date that Person executing this Amendment becomes effective to and the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), Supplemental Warrant Agreement and (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each resolutions of the following documents:
(a) executed counterparts to this Amendment from the Borrower Board of Directors or similar governing body of each Credit Party approving and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this AmendmentAmendment and, and certifying in the name, title and true signature of each officer case of the Borrower executing Company, the Amendment on behalf Supplemental Warrant Agreement, certified as of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing Closing Date by its secretary or existence, an assistant secretary as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be being in full force and effect and all applicable waiting periods shall have expired, and no investigation without modification or inquiry by any governmental authority regarding the Amendment shall be ongoingamendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date first above written, provided that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documentsconditions are satisfied:
(a) The Lender shall have received this Amendment, duly executed counterparts to this Amendment from by the Borrower and each Lender;Borrower.
(b) an instrumentThe Lender shall have received the Amended and Restated Revolving Credit Note attached hereto as Exhibit C, duly executed by each Loan Partythe Borrower (the "Amended Revolving Credit Note"), pursuant to which such Loan Party reaffirms its obligations note shall constitute the Revolving Credit Note all for purposes under the Security Credit Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;.
(c) The Lender shall have received a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and copy of the resolutions of its board the Board of directors or any duly authorized committee thereof, Directors of each Borrower authorizing the execution, delivery and performance by the Borrower of this Amendment, and certifying the nameAmended Revolving Credit Note certified by an officer thereof, title and true signature together with a certificate of each an officer of the Borrower executing (i) certifying as to the incumbency and the true signatures of the officers authorized to execute this Amendment and the Amended Revolving Credit Note on behalf of such Borrower and (ii) certifying that the Borrower;articles of incorporation and bylaws of each Borrower have not been modified since copies of such documents were previously provided to the Lender.
(d) a certified copy The Lender shall have received (i) good standing certificates for each Borrower dated not more than 10 days prior to the date of this Amendment and issued by the certificate state of incorporation of the Borrower, together with such Borrower and (ii) certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified authority to do business as a foreign corporation where dated not more than 10 days prior to the failure to be so qualified could reasonably be expected to have date of this Amendment of each Borrower in each jurisdiction in which the nature of the Borrower's business in such jurisdiction would require such a Material Adverse Effect;certificate of authority.
(e) a certificate, dated the Fifth Amendment Effective Date and signed such other conditions reasonably required by the chief financial officer, treasurer or controller of the Borrower, certifying that Lender and its counsel.
(wf) no Default or Event of Default exists, (x) after After giving effect to this Amendment, the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth the Borrower in Sections 4 and 5 of the Loan Documents are Credit Agreement shall be true and correct in all material respectsas though made on the date hereof, except to for changes that are permitted by the extent that terms of such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; andagreement.
(g) certified copies No Event of all consents, approvals, authorizations, registrations and filings and orders required Default or advisable to be made or obtained under any Requirement Unmatured Event of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods Default shall have expired, occurred and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingcontinuing.
Appears in 1 contract
Samples: Credit Agreement (Sunrise International Leasing Corp)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date (the “Effective Date”) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that Effective Date each of the following, each dated the Effective Date unless otherwise indicated or agreed to by the Administrative Agent and in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Amendment becomes effective duly executed and delivered by each of the Borrowers, the MLP, the Administrative Agent, the Issuer, the Swingline Lender, each Lender participating in the Revolving Credit Commitment Increase and the Required Lenders under the Credit Agreement;
(ii) written commitments duly executed by existing Lenders (or their Affiliates or Approved Funds) or Eligible Assignees in an aggregate amount equal to $300,000,000 and, in the case of each such Eligible Assignee that is not an existing Lender, an assumption agreement in form and substance satisfactory to the Administrative Agent or any of its affiliates in connection with this Amendmentand duly executed by the Parent Borrower, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account and such Eligible Assignee;
(iii) a favorable opinion of each Incremental Lender), (iiA) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King Xxxxxx & Spalding Xxxxxx LLP, counsel to the Administrative AgentLoan Parties, and (B) for which invoices (including estimated expenses) have been presented in-house counsel to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and Loan Parties, each addressed to the Administrative Agent, the Lenders and (iii) each of the following documents:
(a) executed counterparts to this Amendment from Issuers and addressing such matters as the Borrower and each LenderAdministrative Agent may reasonably request;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(civ) a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) the Borrowernames and true signatures of each officer of such Loan Party that has been authorized to execute and deliver this Amendment and the other documents required hereunder to be executed and delivered by or on behalf of such Loan Party, attaching and certifying copies of its bylaws and of (B) the resolutions of its board such Loan Party’s Board of directors Directors (or any duly authorized committee thereof, equivalent governing body) approving and authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title other documents required hereunder to be executed and true signature of each officer of the Borrower executing the Amendment delivered by or on behalf of the Borrower;
such Loan Party and (dC) a certified copy of that there have been no changes in the certificate of incorporation (or equivalent Constituent Document) and the by-laws (or equivalent Constituent Document) of such Loan Party from the certificate of incorporation (or equivalent Constituent Document) and the by-laws (or equivalent Constituent Document) previously delivered to the Administrative Agent on the Amendment No. 1 Effective Date (or if there has been such a change, attaching a certified copy thereof);
(v) a certificate of the Borrowerchief financial officer of each Borrower in his capacity as such (and not in his individual capacity), together with certificates in form and substance satisfactory to the Administrative Agent, attesting to the solvency of the Borrowers and the MLP after giving effect to the Revolving Credit Commitment Increase contemplated hereby; and
(vi) a certificate of a Responsible Officer of the Borrowers to the effect that the conditions set forth in Section 4.2(b) (Conditions Precedent to Each Extension of Credit) of the Credit Agreement have been satisfied both before and after giving effect to this Amendment.
(b) The Administrative Agent shall have received a certificate as to the good standing or existenceof each Loan Party, certified as may be available from of a recent date by the Secretary of State of the jurisdiction State of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Delaware.
(ec) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there There shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed paid to the Administrative Agent Agent, for the account of itself and each of the Lenders, as applicable, all fees and covering such matters relating to expenses (including reasonable fees and expenses of counsel) due and payable on or before the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingEffective Date.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that Article I of this Amendment shall become effective on when, and only when, the date following conditions have been satisfied as reasonably determined by Lender in its sole discretion (the “Second Amendment Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:):
(a) Lender shall have received a duly authorized and executed counterparts to copy of this Amendment from each of the Borrower Borrowers and each Lender;the Guarantors.
(b) an instrumentThe Lender shall have received the amended and restated Closing Date Term Note (capitalizing accrued and unpaid interest through June 13, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement 2013) and the Pledge Agreement;Add-On Term Note each duly executed and delivered by an authorized officer of the Borrowers in favor of the Lender.
(c) a certificate Lender shall have received the consent of the Secretary or Assistant Secretary Revolving Loan Agent, on behalf of the Borrowerlenders under the Revolving Loan Agreement, attaching evidencing their consent and certifying copies approval of its bylaws and the transactions contemplated by this Amendment including, without limitation, amending the Intercreditor Agreement to reflect the same.
(d) Lender shall have received a copy of the resolutions of its the board of directors (or any duly authorized committee thereof, equivalent authority) of each Loan Party authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title and true signature other Amendment Documents to which it is a party as certified by the Secretary or an Assistant Secretary of each officer Loan Party as of the Borrower executing Second Amendment Effective Date; and, such certificate shall state that the Amendment on behalf resolutions thereby certified have not been amended, modified, revoked or rescinded as of the Borrower;date of such certificate.
(de) a certified copy of the certificate of incorporation of the Borrower, together with Lender shall have received good standing certificates or certificates of good standing status or existencecertificates of compliance, as may be available from applicable, for each Loan Party dated as of a recent date prior to the Second Amendment Effective Date, issued by the Secretary of State or other appropriate official of the each such Loan Party’s jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer incorporation or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;formation.
(f) a favorable written opinion The representations and warranties set forth in Section 2.1 of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent this Amendment shall be true and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; andcorrect.
(g) certified copies Borrowers shall have paid the Amendment Fee and, upon funding of the Add-On Term Loan, the Funding Fee to Lender in immediately available funds.
(h) Borrowers shall have paid all consentsreasonable out-of-pocket fees, approvals, authorizations, registrations costs and filings and orders required or advisable to be made or obtained under any Requirement of Law, or expenses incurred by any Contractual Obligation of each Loan Party, Lender in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any and each Other Document (including, without limitation, reasonable legal fees and expenses of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingcounsel to Lender).
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Loan Parties hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date Borrowers shall have no rights under this Amendment, until (the “Effective Date”a) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement otherwise outstanding (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists), (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(fii) a favorable written opinion of Xxxxx Xxxxx L.L.P.Xxxxxxxxxx Xxxxxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the this Amendment and the transactions contemplated therein herein as the Administrative Agent or the Required Lenders shall reasonably request; and
, each in form and substance reasonably satisfactory to the Administrative Agent, (giii) certified copies a certificate of all consents, approvals, authorizations, registrations and filings and orders required the Secretary or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation Assistant Secretary of each Loan Party, in connection with certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery, performance, validity delivery and enforceability performance of this Amendment or any and certifying the name, title and true signature of each officer of such Loan Party executing this Amendment, (iv) executed counterparts to this Amendment from the Borrower, each of the transactions contemplated therebyGuarantors and the Required Lenders and (v) duly executed Revolving Credit Notes executed by the Borrower payable to such Lender; and duly executed Notes executed by the Co-Borrower payable to such Lender and (b) the Borrowers shall have prepaid the Loans in their entirety and, to the extent the Borrowers elect to do so and subject to the conditions specified in Article II, the Borrowers shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to this Amendment, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to this Amendment, and such consentseffective upon the effectiveness of this Amendment, approvals, authorizations, registrations, filings and orders shall be the amount of the participations held by each Lender in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.each Letter of Credit then outstanding shall
Appears in 1 contract
Samples: Revolving Credit Agreement
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date as of January 26, 2017 (the “Amendment Effective Date”) when when:
(a) This Amendment shall have been executed and delivered by Holdings, each Borrower, each Guarantor, each First Amendment Refinancing Lender and the Administrative Agent;
(b) The Administrative Agent shall have received a favorable written opinion of Xxxxxx LLP, special counsel for the Loan Parties, addressed to the Agents and the First Amendment Refinancing Lenders and in a form reasonably satisfactory to the Administrative Agent;
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Amendment and the transactions related thereto and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions, all in form and substance satisfactory to the Administrative Agent;
(d) each of MSSF and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, in their capacities as joint lead arrangers and joint bookrunners of this Amendment (each in such capacity, a “Lead Arranger” and, collectively, the “Lead Arrangers”), and the Administrative Agent shall have received (i) all fees and other amounts due and payable to such fees as the Borrower has previously agreed to pay Person on or prior to the date that this Amendment becomes effective Effective Date, including, to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant extent invoiced at least two Business Days prior to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)Effective Date, (ii) reimbursement or payment of its all reasonable and documented out-of-pocket costs expenses (including the reasonable and documented legal fees and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King Xxxxx Xxxx & Spalding Xxxxxxxx LLP, special counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented Agents and the Lead Arrangers), and the reasonable and documented fees and expenses of any local counsel, appraisers, consultants and other advisors required to be reimbursed or paid by Borrowers hereunder or under any other Loan Document, to the Borrower extent invoiced at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts Business Days prior to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectEffective Date;
(e) a certificateThe Borrowers and each other Loan Party shall be in compliance in all material respects with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, dated and, at the Fifth Amendment Effective Date time of and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) immediately after giving effect to the execution and delivery extension of the First Amendment Refinancing Term Loans and the funding application of the Term Loans proceeds thereof, no Default shall have occurred and be continuing on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 date;
(f) Each of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in Article III of the Amended Credit Agreement or in any other Loan Documents are Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of the extension of First Amendment Refinancing Term Loans with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date date, in which case they shall be true and correct in all material respects as of such earlier date;
(zg) since March 31No order, 2014, there judgment or decree of any Governmental Authority shall purport to restrain any First Amendment Refinancing Lender from making the First Amendment Refinancing Term Loans to be made by it. No injunction or other restraining order shall have been no change which has had issued, shall be pending or could reasonably be expected noticed with respect to have any action, suit or proceeding seeking to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a Material Adverse Effectresult of, the transactions contemplated by this Amendment or the making of First Amendment Refinancing Term Loans hereunder;
(fh) a favorable written opinion the representations and warranties in Section 3 of Xxxxx Xxxxx L.L.P., counsel to this Amendment shall be true and correct in all material respects as of the Borrower, addressed to date hereof;
(i) each First Amendment Refinancing Lender and the Administrative Agent and each of the Lendersshall have received, and covering such matters relating to the Borrower, extent requested at least three (3) days prior to the Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestPATRIOT Act; and
(gj) certified copies the Administrative Agent shall have received a certificate of all consentsHoldings, approvalsexecuted by a Responsible Officer of Holdings, authorizations, registrations and filings and orders required or advisable certifying as to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any satisfaction of the transactions contemplated thereby, conditions set forth in paragraphs (e) and such consents, approvals, authorizations, registrations, filings and orders (f) above. The Borrowing of the First Amendment Refinancing Term Loans shall be in full force deemed to constitute a representation and effect and all applicable waiting periods shall have expired, and no investigation or inquiry warranty by any governmental authority regarding the Borrower on the Amendment shall be ongoingEffective Date as to the matters specified in paragraphs (e) and (f) above.
Appears in 1 contract
Samples: Credit Agreement (TiVo Corp)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received at least eight (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any 8) counterparts of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed duly executed by the Borrower and the Administrative Agent, and (iii) each all of the Lenders, provided the following documentsconditions are satisfied:
(a) executed counterparts Before and after giving effect to this Amendment from Amendment, the representations and warranties of the Borrower in Article IV of the Credit Agreement and each Lender;Section 5 of the Pledge and Security Agreement shall be true and correct as though made on the date hereof, except for changes that are permitted by the terms of the Credit Agreement.
(b) an instrumentBefore and after giving effect to this Amendment, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement no Event of Default and the Pledge Agreement;no Default shall have occurred and be continuing.
(c) a certificate No material adverse change in the business, assets, financial condition or prospects of the Secretary Borrower shall have occurred since May 31, 1999.
(d) The Agent shall have received the following, each duly executed or Assistant Secretary certified, as the case may be, and dated as of the date of delivery thereof::
(i) a new Note payable to each Lender holding a Commitment from and after the Effective Date, in the amount of such Lender's respective Commitment Amount after giving effect to the increase thereof pursuant to this Amendment (each, a "New Note"), duly executed by the Company;
(ii) copy of resolutions of the Board of Directors of the Borrower, attaching and certifying copies of certified by its bylaws and of the resolutions of its board of directors respective Secretary or any duly authorized committee thereofAssistant Secretary, authorizing or ratifying the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(diii) a certified copy of the certificate of incorporation any amendment or restatement of the Borrower, together with certificates Articles of good standing Incorporation or existence, as may be available from the Secretary of State of the jurisdiction of organization By-laws of the Borrower and each other jurisdiction where made or entered following the Borrower is required date of the most recent certified copies thereof furnished to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectLenders;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(giv) certified copies of all consentsdocuments evidencing any necessary corporate action, approvalsconsent or governmental or regulatory approval (if any) with respect to this Amendment;
(v) a certificate of good standing for the Borrower in the jurisdiction of its incorporation, authorizationscertified by the appropriate governmental official as of a date not more than 10 days prior to the Effective Date; and
(vi) such other documents, registrations instruments, opinions and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with approvals as the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods Agent may reasonably request.
(e) The Agent shall have expired, and no investigation or inquiry received the amendment fee required by any governmental authority regarding the Amendment shall be ongoing.Section 10.02
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Conditions to Effectiveness of this Amendment. It is understood and agreed that Subject to the final paragraph of this Section 4, this Amendment shall become effective on as of the date the following conditions precedent have been satisfied (the “Amendment Effective Date”):
(a) when the Administrative Agent shall have received received: (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs duly executed and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed delivered by the Borrower and the Administrative Agent, (ii) the Affirmation of Guarantors, in the form attached hereto as Annex A, duly executed and delivered by each of the Guarantors and (iii) each of Lender Consents, in the following documents:
form attached hereto as Annex B (a) the “Lender Consents”), duly executed counterparts to this Amendment from by Lenders constituting the Borrower and each LenderRequisite Lenders;
(b) an instrument, executed the Administrative Agent shall have received all fees and accrued expenses of the Administrative Agent required to be paid by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementBorrower;
(c) a certificate each of the Secretary representations and warranties made by any Loan Party in or Assistant Secretary pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Borrowerdate hereof, attaching as if made on and certifying copies as of its bylaws such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrowersuch earlier date;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution shall have occurred and delivery of the Amendment and the funding of the Term Loans be continuing on the Fifth Amendment Effective Date, neither date hereof; and
(e) the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed paid to the Administrative Agent (i) for the account of each Lender party hereto, the consent fee referred to in Section 6 hereof and each (ii) in accordance with Section 11.3 of the LendersCredit Agreement, all outstanding costs and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as expenses of the Administrative Agent Agent, including the reasonable fees and out-of-pocket expenses of Weil, Gotshal & Xxxxxx LLP, counsel for the Administrative Agent, incurred prior to or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, otherwise in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any and each other Loan Document. Notwithstanding anything in this Amendment to the contrary, the amendments described in Section 3 (other than the amendment in Section 3(i)) shall not be effective until the Xxxxx Merger Effective Date shall have occurred, if at all, in accordance with the terms of the transactions contemplated therebyXxxxx Merger Agreement; provided, and that if the Xxxxx Merger Effective Date does not occur or the Xxxxx Merger Agreement is terminated, such consents, approvals, authorizations, registrations, filings and orders amendments (other than the amendment in Section 3(i)) shall be in full disregarded and of no further force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingeffect.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates Affiliates or the Lenders in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable and documented out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding Xxxxxxxxx Xxxxxxx, LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent), and (iii) each of the following documents:documents (the “Amendment Effective Date”):
(a) executed counterparts to this Amendment (which may include telecopy or other electronic submission of signed signature pages) from the Borrower Borrower, Parent, the other Loan Parties, the Required Lenders, the Committing Lenders and each Lenderthe Administrative Agent;
(b) an instrumentat the request of any Lender providing a Revolving Commitment Increase, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreementpromissory notes (or applicable replacements thereof);
(c) a certificate of the Secretary or Assistant Secretary (or, in the case of UK Loan Parties, an authorized signatory) of each Loan Party in the Borrowerform of Exhibit 3.1(b)(ii) attached to the Credit Agreement with such amendments as the Administrative Agent may agree, attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its such Loan Party’s board of directors or any duly authorized committee thereofother equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of this Amendment, Amendment (if applicable) and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Amendment on behalf of the BorrowerLoan Documents to which it is a party;
(d) a certified copy copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together (except with respect to UK Loan Parties) with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party and in the Borrower and each other jurisdiction where case of the Borrower, a certificate from the Secretary of State of New York that the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectcorporation;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of (i) Cravath, Swaine & Xxxxx Xxxxx L.L.P.LLP, special New York counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, this Amendment, the Amendment other Loan Documents and the transactions contemplated therein as the Administrative Agent or the Lenders shall reasonably request (ii) Xxxxxxxxx and May, special English counsel to the Borrower and each UK Loan Party, addressed to the Administrative Agent and each of the Lenders, and covering such English law matters relating to the Loan Parties, this Amendment, the other Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request and (iii) Xxxxxxxxx Xxxxxxx, LLP (London), special UK counsel to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the this Amendment, the other Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(f) copies of favorable UCC, tax and judgment lien search reports (excluding, for the avoidance of doubt, intellectual property searches) in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties as requested by the Administrative Agent;
(g) a certificate from a Responsible Officer of the Borrower certifying that, on the date hereof and immediately after giving effect to the transactions contemplated herein, no Default or Event of Default exists or is continuing, all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects) except to the extent that any such representation or warranty specifically refers to an earlier date, in which case it is true and correct in all material respects as of such earlier date (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects as of such earlier date), and since March 31, 2020, there has been no change with respect to the Borrower and its Subsidiaries which has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) duly executed copies of (i) that certain Supplemental Debenture dated as of the date hereof by and among the UK Loan Parties and Administrative Agent and (ii) that certain Supplemental Charge Over Shares dated as of the date hereof by and between Borrower and Administrative Agent; and
(gi) certified copies of all consentssuch other documents, approvalsinstruments, authorizations, registrations certificates and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with consents as the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAdministrative Agent may reasonably request.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that The effectiveness of this Amendment shall become effective on is subject to satisfaction (or waiver by the Required Lenders and the Administrative Agent) of the following conditions precedent (the date (of such satisfaction or waiver being the “Amendment Effective Date”):
(a) when the Administrative Agent shall have received receipt of duly executed counterparts of this Amendment from (i) such fees as the Borrower has previously agreed and each Guarantor, (ii) Lenders constituting the Required Lenders and (iii) the Administrative Agent;
(b) receipt of a fully executed and effective amendment to pay the Revolving Credit Agreement making amendments thereto corresponding to those set forth in Section 1(a) of this Amendment in form and substance reasonably satisfactory to the Amendment Arranger;
(c) receipt of an Officer’s Certificate, signed by a Financial Officer of the Borrower, certifying that at the time of and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred or be continuing;
(d) the Borrower shall have paid to the Administrative Agent, for distribution to each Lender who consents to this Amendment and submits an executed signature page hereto prior to January 12, 2018, at 5:00 p.m. (New York time), a consent fee equal to 0.125% of the aggregate principal amount of such Lender’s Term Loans outstanding on the Amendment Effective Date, which fee shall be non-refundable and fully earned and payable on the Amendment Effective Date; and
(e) the Borrower shall have paid to the Amendment Arranger and the Administrative Agent, to the extent invoiced no later than the Business Day immediately preceding the Amendment Effective Date, all costs and expenses due and payable (whether pursuant to the Loan Documents or any agreement relating to this Amendment) on or prior to the date that this Amendment becomes effective Effective Date, including, to the Administrative Agent or any of its affiliates in connection with this Amendmentextent invoiced, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its all reasonable out-of-and documented out of pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including including, without limitation, reasonable fees, charges and disbursements of King Xxxxxx & Spalding Xxxxxxx LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed reimbursed or paid by the chief financial officer, treasurer Loan Parties hereunder or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingDocument.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrowers shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices ), (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(aii) executed counterparts to this Amendment from the Borrower and Borrowers, each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under of the Security Agreement, the Subsidiary Guaranty Agreement Guarantors and the Pledge Agreement;
Lenders, (ciii) duly executed Notes payable to the order of each Lender requesting a promissory note in the amount of such Lender's Revolving Loan Commitment, as amended hereby, (iv) a duly executed Borrowing Base Certificate calculated after giving effect to this Amendment, (v) a certificate signed by an Authorized Signatory of each Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Credit Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Secretary or Assistant certificate of incorporation of such Credit Party certified to be true, complete and correct by the Secretary of State of the BorrowerState of such Credit Party's incorporation, attaching (B) a true, complete and certifying copies correct copy of its bylaws the by-laws of such Credit Party, (C) a true, complete and correct copy of the resolutions of its board of directors or any duly authorized committee thereof, such Credit Party authorizing the execution, delivery and performance by such Credit Party of this Amendment, the other Loan Documents and certifying the nametransactions contemplated herein, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(dD) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction incorporation of organization of the Borrower each Credit Party and each other jurisdiction where the Borrower such Credit Party is required to be qualified to do business as a foreign corporation where the and a failure to be so qualified could reasonably be expected to have a Material Materially Adverse Effect;
Effect (e) a certificateother than the State of Tennessee with respect to Xxxxxxx Furniture Companies, dated Inc., which shall be delivered on or before June 15, 2016 or such later date as the Fifth Amendment Effective Date and signed by the chief financial officerAdministrative Agent may agree), treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (zvi) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written an opinion of Xxxxx Xxxxx L.L.P., counsel to the BorrowerCredit Parties, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerCredit Parties, this Amendment, the Amendment Loan Documents and the transactions contemplated herein and therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date as of August 9, 2019 (the “Amendment No. 2 Effective Date”) when when:
i. this Amendment shall have been executed and delivered by the Borrowers, the Subsidiary Loan Parties (solely for purposes of Section 5 hereof), each New Revolving Lender, each New Term Lender and the Administrative Agent Agents;
ii. the Administrative Agents shall have received a certificate of a Responsible Officer of each Loan Party dated the date hereof certifying (iw) that attached thereto is a true and complete copy of the Organizational Documents of such fees Loan Party and, to the extent applicable, certified as of a recent date by the Borrower has previously agreed appropriate governmental official, (x) that attached thereto is a good standing certificate (to pay on the extent such concept is known in the relevant jurisdiction) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation dated a recent date prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)No. 2 Effective Date, (iiy) reimbursement or payment of its reasonable out-of-pocket costs that attached thereto is a true and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and complete copy of the resolutions of its duly adopted by the board of directors or any similar governing body of such Loan Party, or duly authorized constituted committee thereofthereof (including, with regard to the U.K. Borrower, shareholder resolutions), authorizing the execution, delivery and performance of this Amendment, all documents executed in connection therewith, the borrowings thereunder, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect on such date and (z) as to the name, title incumbency and true specimen signature of each Responsible Officer executing this Amendment and any document executed in connection therewith and countersigned by another officer as to the incumbency and specimen signature of the Borrower Responsible Officer executing such certificate which, with respect to the U.K. Borrower, shall also include a certification that (A) borrowing or guaranteeing or securing, as appropriate, the aggregate Commitments under the Credit Agreement and any other Loan Document would not cause any borrowing, guarantee, security or similar limit binding on such Loan Party to be exceeded, as applicable and (B) each copy document relating to it specified in this Section 2(b) is correct, complete and in full force and effect and has not been amended or superseded as at a date earlier than the Amendment No. 2 Effective Date;
(i) the applicable Administrative Agent shall have received notices of borrowing of New Term Loans and New Revolving Loans, if applicable, and notices of prepayment relating to the Refinanced Tranche A Term Loans and the Tranche B Term Loans and (ii) the prepayment of the aggregate outstanding principal amount of the Refinanced Tranche A Term Loans and the Tranche B Term Loans shall have been consummated or, substantially concurrently with the incurrence of the New Term Loans, shall be consummated together with all accrued and unpaid interest on, and fees related to, the Refinanced Tranche A Term Loans, the Tranche B Term Loans and the Refinanced Revolving Loans (if any);
iv. the applicable Administrative Agent shall have received a promissory note in form and substance reasonably acceptable to the applicable Administrative Agent executed by the applicable Borrower in favor of each Lender that requests such a promissory note at least three (3) Business Days in advance of the Amendment No. 2 Effective Date;
v. the representations and warranties set forth in Article III of the Credit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the date hereof (both before and after giving effect to the transactions contemplated by this Amendment) with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
vi. the representations and warranties in Section 4 of this Amendment shall be true and correct in all material respects as of the date hereof;
vii. each New Revolving Lender, New Term Lender and the Administrative Agents shall have received at least two (2) Business Days prior to the date hereof all documentation and other information about the Borrowers and the Subsidiary Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that has been requested in writing at least five (5) Business Days prior to the date hereof;
viii. the applicable Administrative Agents shall have received, on behalf of themselves and the Borrowerapplicable Lenders, a favorable written opinion from each of Xxxxx & XxXxxxxx LLP, New York and Illinois counsel for the Loan Parties and Xxxxx Xxxx & Xxxxxxxx London LLP, U.K. counsel for the Tranche A Term Loan Administrative Agent and Revolving Facility Administrative Agent, in each case, (A) dated the date hereof, (B) addressed to the applicable Administrative Agents and the applicable Lenders and (C) in form and substance reasonably satisfactory to the applicable Administrative Agents and covering such other matters relating to this Amendment as the applicable Administrative Agents shall reasonably request;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) ix. no Default or Event of Default exists, (x) shall exist on the date hereof before or after giving effect to the execution New Term Loans and delivery any New Revolving Loans and the use of proceeds thereof;
x. all fees and expenses required to be paid by (or on behalf of) the Borrowers to the Administrative Agents pursuant to any written agreement with any Borrower entered into on or before the Amendment No. 2 Effective Date and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, invoiced at least two (y2) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except Business Days prior to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there Amendment No. 2 Effective Date shall have been no change which has had paid in full in cash or could reasonably be expected to arrangements shall have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to been made for the Borrower, addressed to payment thereof substantially concurrently with the Administrative Agent and each incurrence of the Lenders, and covering such matters relating to the Borrower, the Amendment New Term Loans and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestNew Revolving Loans (if any); and
xi. at least two (g2) certified copies of all consentsdays prior to the date hereof, approvals, authorizations, registrations and filings and orders required or advisable any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any such Borrower. The Borrowing of the transactions contemplated thereby, New Term Loans and such consents, approvals, authorizations, registrations, filings and orders any New Revolving Loans shall be in full force deemed to constitute a representation and effect and all warranty by the applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding Borrower on the Amendment shall be ongoingNo. 2 Effective Date as to the matters specified in paragraphs (e) and (i) above.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date (the “Effective Date”) when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that Effective Date each of the following, each dated the Effective Date unless otherwise indicated or agreed to by the Administrative Agent and in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Amendment becomes effective duly executed and delivered by each of the Borrowers, the MLP, the Administrative Agent, the Issuer, the Swingline Lender and each Lender under the Credit Agreement;
(ii) written commitments duly executed by existing Lenders (or their Affiliates or Approved Funds) or Eligible Assignees in an aggregate amount equal to $300,000,000 and, in the case of each such Eligible Assignee that is not an existing Lender, an assumption agreement in form and substance satisfactory to the Administrative Agent or any of its affiliates in connection with this Amendmentand duly executed by the Parent Borrower, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account and such Eligible Assignee;
(iii) a favorable opinion of each Incremental Lender), (iiA) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King Xxxxxx & Spalding Xxxxxx LLP, counsel to the Administrative AgentLoan Parties, and (B) for which invoices (including estimated expenses) have been presented in-house counsel to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and Loan Parties, each addressed to the Administrative Agent, the Lenders and (iii) each of the following documents:
(a) executed counterparts to this Amendment from Issuers and addressing such matters as the Borrower and each LenderAdministrative Agent may reasonably request;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(civ) a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) the Borrowernames and true signatures of each officer of such Loan Party that has been authorized to execute and deliver this Amendment and the other documents required hereunder to be executed and delivered by or on behalf of such Loan Party, attaching and certifying copies of its bylaws and of (B) the resolutions of its board such Loan Party’s Board of directors Directors (or any duly authorized committee thereof, equivalent governing body) approving and authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title other documents required hereunder to be executed and true signature of each officer of the Borrower executing the Amendment delivered by or on behalf of the Borrower;
such Loan Party and (dC) a certified copy of that there have been no changes in the certificate of incorporation (or equivalent Constituent Document) and the by-laws (or equivalent Constituent Document) of such Loan Party from the certificate of incorporation (or equivalent Constituent Document) and the by-laws (or equivalent Constituent Document) previously delivered to the Administrative Agent on the Effective Date (or if there has been such a change, attaching a certified copy thereof);
(v) a certificate of the Borrowerchief financial officer of each Borrower in his capacity as such (and not in his individual capacity), together with certificates in form and substance satisfactory to the Administrative Agent, attesting to the solvency of the Borrowers and the MLP after giving effect to the Revolving Credit Commitment Increase contemplated hereby; and
(vi) a certificate of a Responsible Officer of the Borrowers to the effect that the conditions set forth in Section 4.2(b) (Conditions Precedent to Each Extension of Credit) of the Credit Agreement have been satisfied both before and after giving effect to this Amendment.
(b) The Administrative Agent shall have received a certificate as to the good standing or existenceof each Loan Party, certified as may be available from of a recent date by the Secretary of State of the jurisdiction State of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Delaware.
(ec) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there There shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed paid to the Administrative Agent Agent, for the account of itself and each of the Lenders, as applicable, all fees and covering such matters relating to expenses (including reasonable fees and expenses of counsel) due and payable on or before the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingEffective Date.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become be effective on as of the date hereof when and if (such date being the “Effective Amendment Date”) when the following conditions are satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the Amendment Date (iexcept for the financial statements referred to in clause (v) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective below), in form and substance satisfactory to the Administrative Agent or any and with one copy for each Swing Line Lender, each Fronting Bank and each Lender:
(i) Counterparts of its affiliates in connection with this Amendment, including without limitation duly executed by each of the fees payable Borrowers, the Swing Line Lenders, the Fronting Banks, Lenders constituting Majority Lenders and each Increasing Lender, Additional Lender and Additional Commitment Lender, and all Notes (if any) requested by the Lenders pursuant to Section 2.18(d) of the Fifth Amendment Fee Letter (including without limitation fees Amended Credit Agreement, duly completed and executed by each Borrower and payable thereunder to the Administrative Agent for the account of each Incremental Lender), such Lenders;
(ii) reimbursement or payment Certified copies of its reasonable out-of-pocket costs (A) the resolutions of the Board of Directors of each Borrower approving this Amendment (including the Extension, the Commitment Increase and expenses incurred the increase in such Borrower’s Borrower Sublimit, as applicable), the Amended Credit Agreement and the other Loan Documents (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or the Credit Agreement is to be, a party and (B) all documents evidencing any other necessary corporate action with respect to this Amendment (including reasonable feesthe Extension, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower Commitment Increase and the Administrative Agentincrease in such Borrower’s Borrower Sublimit, as applicable), the Amended Credit Agreement, and such Loan Documents (as defined in the Amended Credit Agreement);
(iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (A) the names and true signatures of the officers of such Borrower authorized to sign this Amendment and each other Loan Document (as defined in the Amended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, or is to become, a party and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the Organizational Documents of such Borrower, attaching in each case as in effect on such date, and certifying (C) that attached thereto are true and correct copies of its bylaws all governmental and of regulatory authorizations and approvals (including such Borrower’s Approval) required for (1) the resolutions of its board of directors or any duly authorized committee thereof, authorizing the due execution, delivery and performance by such Borrower of this Amendment, the Amended Credit Agreement, and certifying each other Loan Document (as defined in the nameAmended Credit Agreement) being executed and delivered in connection with this Amendment to which such Borrower is, title or is to become, a party and true signature (2) in the case of each officer of FE and JCP&L, the Commitment Increase and the increase in the applicable Borrower executing the Amendment on behalf of the BorrowerSublimit;
(div) a certified copy of the A certificate of incorporation an Authorized Officer of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the each Borrower stating that both before and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to this Amendment (including the execution and delivery of Extension, the Amendment Commitment Increase and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the increase in such Borrower’s Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States CodeSublimit, as amended from time to time, applicable) (A) no event has occurred and is continuing that constitutes an Event of Default or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, Unmatured Default and (yB) all other representations and warranties of each Loan Party set forth made by such Borrower in the Loan Documents Amended Credit Agreement are true and correct in all material respects, except to the extent that for those made specifically as of another date, in which case such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effecttrue as of such other date;
(fv) a favorable written Copies of all the Disclosure Documents (it being agreed that those Disclosure Documents publicly available on the SEC’s XXXXX Database or on FE’s website no later than the Business Day immediately preceding the Amendment Date will be deemed to have been delivered under this clause (v));
(vi) (A) An opinion of Xxxx X. Xxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A-1 hereto, and (B) an opinion of Xxxxxxx X. Xxxxxxxx, Esq., Associate General Counsel of FE and counsel for the Borrowers, substantially in the form of Exhibit A-2 hereto;
(vii) An opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, special New York counsel for the Borrowers, substantially in the form of Exhibit B-1 hereto;
(viii) An opinion of Xxxxxx, Xxxxx L.L.P.and Bockius LLP, special New Jersey counsel for JCP&L, substantially in the form of Exhibit B-2 hereto;
(ix) An opinion of Hunton & Xxxxxxxx LLP, special Virginia counsel for PE, substantially in the form of Exhibit B-3 hereto;
(x) An opinion of DLA Piper LLP (US), special Maryland counsel for PE, substantially in the form of Exhibit B-4 hereto;
(xi) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent, substantially in the form of Exhibit C hereto; and
(xii) Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank, any Swing Line Lender or any other Lender may reasonably request, all in form and substance satisfactory to the BorrowerAdministrative Agent, addressed to such Fronting Bank, such Swing Line Lender or such other Lender (as the case may be).
(b) The Borrowers shall have paid all of the fees payable in accordance with the 2013 Amendment Fee Letter.
(c) The Administrative Agent shall have received a copy of a letter agreement, dated as of May 8, 2013, among the Borrowers, the Administrative Agent and each any “Lender” (as defined in the Credit Agreement) party to the Credit Agreement that will not be a Lender under the Amended Credit Agreement, evidencing the termination of the Lenders, and covering “Commitment” (as defined in the Credit Agreement) of such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and“Lender”.
(gd) certified copies Each of all consents, approvals, authorizations, registrations the representations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, warranties in connection with the execution, delivery, performance, validity and enforceability Section 5 of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force true and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingcorrect.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Commitment Increase Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender)Letter, (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementAgreement and consents to the amendments to such documents described in Section 4 hereof, as applicable;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofdirectors, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Third Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrowera Responsible Officer, certifying that (wx) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 20142012, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Bristow Group Inc)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall will become effective on upon the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed execution and delivery to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any Lender of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documentsdocuments by the Borrower , each in form and substance acceptable to Lender:
(a) executed counterparts Lender receives One Hundred Thousand Dollars ($100,000) in cash from Borrower and/or RLE to this Amendment from be applied against the Obligations with the source of that cash being the funds currently held in the RLE Project Account; and
(b) Borrower and the other parties to each of the following documents (other than Lender) have executed and delivered each of the following documents to Lender in form and substance acceptable to Lender:
(i) this Amendment;
(ii) Second Amendment to Deed of Trust, Mortgage, Assignment of Production, Security Agreement and Financing Statement from Borrower in favor of Lender;
(biii) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement Omnibus Amendment from Borrower and the Pledge AgreementJOG in favor of Lender;
(civ) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerGuaranty;
(dv) a certified copy Guaranty Agreement from Parent in favor of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectLender;
(evi) a certificateSubordination Agreement from JOG in favor of Lender;
(vii) Subordination Agreement from Parent in favor of Lender;
(viii) that certain Letter Agreement regarding Lender’s consent to the reorganization of JOG between JOG, dated the Fifth Amendment Effective Date Borrower, Rampant Lion Energy, LLC and signed by the chief financial officer, treasurer or controller Lender;
(ix) Certificate of the Managing Member of Borrower certifying as to Borrower’s Charter Documents, certifying that (w) no Default or Event of Default exists, authorizing resolutions and good standing;
(x) after giving effect Certificate of Secretary of JOG certifying as to the execution JOG’s Charter Documents, authorizing resolutions and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectgood standing;
(fxi) a favorable written legal opinion of Xxxxx Xxxxx L.L.P., Borrower’s counsel with respect to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as hereby, in form and substance satisfactory to Lender;
(xii) a payment instruction letter executed by Borrower, JOG, Amber and Xxxx Xxxxxx Bridge & Opportunity Fund, XX XX authorizing and directing Lender to apply all amounts currently held in the Administrative Agent or RLE Project Account against the Required Lenders shall reasonably requestObligations; and
(gxiii) certified copies any other document necessary or convenient in the opinion of all consents, approvals, authorizations, registrations and filings and orders required Lender or advisable its counsel to be made or obtained under any Requirement of Law, or give effect to the modifications to the Credit Agreement contemplated by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date the following conditions precedent have been satisfied (the “"Effective Date”"):
(a) when the The Administrative Agent shall have received (i) such fees this Amendment, duly executed and delivered by the Company, (ii) the Consent and Affirmation, in the form attached hereto as Annex A, duly executed and delivered by each of the Borrower has previously agreed to pay Guarantors, and (iii) Lender Consents, in the form attached hereto as Annex B (the "Lender Consent"), duly executed and delivered by Lenders constituting the Required Lenders.
(i) The Term Loan Administrative Agent shall have received from the Company, for the ratable benefit of the Term Loan Lenders that have delivered a Lender Consent on or prior to the date that this Amendment becomes effective Effective Date, an amendment fee equal to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account 0.25% of each Incremental such Term Loan Lender), 's Term Loan Percentage of the aggregate principal amount of Term Loans outstanding on the Effective Date and (ii) reimbursement the Multi-Currency Administrative Agent shall have received from the Company, for the ratable benefit of the Multi-Currency Lenders that have delivered a Lender Consent on or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel prior to the Administrative Agent) for which invoices (including estimated expenses) have been presented Effective Date, an amendment fee equal to 0.125% of each such Multi-Currency Lender's Multi-Currency Percentage of the Borrower at least two (2) days before Aggregate Multi-Currency Commitment as of the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;Date.
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching Prior to and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery this Amendment, each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are shall be true and correct in all material respectsrespects on and as of the date hereof, as if made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(zd) since March 31, 2014, there No Default or Event of Default shall have been no change which has had occurred and be continuing on the date hereof prior to or could reasonably be expected after giving effect to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date (the “"Amendment Effective Date”") when on which the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by (i) the Borrower, (ii) the Guarantors and (iii) the Required Lenders;
(b) the Administrative Agent shall have received (i) such fees as the Aircraft Mortgage Agreement, substantially in the form of Exhibit B hereto, duly executed and delivered by the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), and (ii) reimbursement or payment the Route Security Agreement, substantially in the form of its reasonable out-of-pocket costs Exhibit C hereto, duly executed and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed delivered by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) shall have occurred and be continuing after giving effect to the execution and delivery amendments contemplated herein;
(d) each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by the Loan Party set forth Parties and their Subsidiaries in or pursuant to the Loan Documents are shall be true and correct in all material respectsrespects on and as of the Amendment Effective Date as if made on and as of such date, except to the extent that such representations for any representation and warranties specifically refer to warranty which is expressly made as of an earlier date date, which representation and (z) since March 31, 2014, there warranty shall have been no change which has had or could reasonably be expected true and correct in all material respects as of such earlier date;
(e) the Administrative Agent shall have received a legal opinion of counsel from Xxxxxxxx X. Xxxxxxxxx, counsel to have a Material Adverse Effectthe Borrower and the Guarantors, in form and substance satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a favorable written legal opinion of Xxxxx Xxxxx L.L.P.counsel from Xxxxxx & Whitney, special counsel to for the Borrower, addressed in form and substance satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a legal opinion of counsel from Xxxxx & Xxxxxxx, special aviation counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent;
(h) the Administrative Agent shall have received each document (including any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and covering superior in right to any other Person (other than with respect to Permitted Liens), which shall be in proper form for filing, registration or recordation;
(i) the Administrative Agent shall have received such matters relating to the Borrower, the Amendment documents and the transactions contemplated therein certificates as the Administrative Agent or may reasonably request relating to the Required Lenders organization, existence and good standing of the Loan Parties and the authorization of the transactions pursuant to the Loan Documents, all in form and substance satisfactory to the Administrative Agent;
(j) the Administrative Agent shall have received a certificate of an officer of the Borrower and each Guarantor in form and substance as may reasonably requestbe requested by the Administrative Agent which shall, among other things, certify as to matters described in clauses (c) and (d) above; and
(k) the Borrower shall have paid to the Administrative Agent, for the account of each Lender which executes and delivers this Amendment prior to 5:00 P.M., New York City time, October 22, 2001, such amendments fee as the Borrower and the Administrative Agent have mutually agreed upon; provided, that, notwithstanding the forgoing, to the extent filings required pursuant to the Federal Aviation Act or Uniform Commercial Code in subsection 3(h) above have not been completed (and opinions contemplated in subsections 3(e), (f) and (g) certified copies have not been delivered to the extent such opinions are based upon completion of all consentssuch filings) at or prior to the time that the other conditions set forth herein shall have been satisfied, approvals, authorizations, registrations such conditions shall nonetheless be deemed satisfied and the Borrower shall use reasonable efforts to complete such filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Partydeliver such opinions as soon as practicable following the Amendment Effective Date; provided further that, in connection with the executionevent such conditions have not been satisfied within 15 days from the date hereof, delivery, performance, validity and enforceability such failure shall constitute an Event of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingDefault.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Northwest Airlines Corp)
Conditions to Effectiveness of this Amendment. It is understood The effectiveness of the terms and agreed that provisions of this Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior be subject to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documentsfollowing:
(a) the receipt by Agent of this Amendment, in form and substance satisfactory to Agent in its sole discretion, duly authorized, executed counterparts to this Amendment from the Borrower and delivered by each LenderBorrower, Lenders and Agent;
(b) an instrumentthe receipt by Agent of the Second Amended and Restated Revolver Note, in form and substance satisfactory to Agent in its sole discretion, duly authorized, executed and delivered by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementBorrower;
(c) the receipt by Agent of a certificate Secretary’s Certificate of the Secretary or Assistant Secretary of the BorrowerDirectors’ Resolutions, attaching Organic Documents and certifying copies of Incumbency, in form and substance satisfactory to Agent in its bylaws sole discretion, duly authorized, executed and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the delivered by New Borrower;
(d) a certified copy the receipt by Agent of all filings or recordations necessary to perfect Agent’s Liens in the certificate Collateral of incorporation of the New Borrower, together with certificates as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral of good standing or existenceNew Borrower, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectexcept Permitted Liens;
(e) the receipt by Agent of certificates, in form and substance satisfactory to it, from a certificateknowledgeable Senior Officer of each Borrower certifying that, dated after giving effect to the Fifth Amendment Effective Date and signed by the chief financial officertransactions hereunder, treasurer or controller of the Borrower, certifying that (wi) such Borrower is Solvent; (ii) no Default or Event of Default exists, ; (xiii) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents Section 9 are true and correct in all material respects, respects (except to the extent that such for those representations and warranties specifically refer to an earlier date that are already qualified by concepts of materiality or by express thresholds, which representations and warranties shall be true and correct in all respects); and (ziv) since March 31, 2014, there shall have been no change which such Borrower has had or could reasonably complied with all agreements and conditions to be expected to have a Material Adverse Effectsatisfied by it under the Loan Documents;
(f) a favorable written opinion the receipt by Agent of Xxxxx Xxxxx L.L.P.certificates of insurance for the insurance policies carried by New Borrower, counsel all in compliance with the Loan Documents;
(g) Agent shall have completed its business, financial and legal due diligence of New Borrower;
(h) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the effective date of this Amendment;
(i) On the date hereof, upon giving effect to the Borrowerpayment by Borrowers of all fees and expenses incurred in connection herewith, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders Aggregate Availability shall reasonably requestbe at least $7,500,000; and
(gj) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under All conditions precedent in any Requirement of Law, or by any Contractual Obligation of each other Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders Document shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingsatisfied.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the holders of the Notes hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (Company shall have no rights under this Amendment, until the “Effective Date”) when the Administrative Agent Noteholders shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Note Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative AgentNoteholders), (ii) for an amendment fee to each Purchaser in an amount equal to 0.08% of the outstanding principal amount of the Notes held by such Purchaser, which invoices (including estimated expenses) have been presented to fee shall be fully earned and non-refundable on the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agentdate paid, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower Company, each of the Guarantors (as defined below) and each Lenderthe Noteholders;
(b) an instrumentexecuted counterparts to the Fee Letter from the Company, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under of the Security Agreement, the Subsidiary Guaranty Agreement Guarantors and the Pledge AgreementNoteholders;
(c) a certificate duly executed Credit Agreement;
(d) a duly executed (i) amendment to the AIG Purchase Agreement and (ii) fee letter agreement in connection with such amendment, each certified as true, correct and complete by a Responsible Officer of the Secretary or Assistant Secretary of Company and each in form and substance reasonably satisfactory to the Borrower, attaching and certifying Noteholders;
(e) copies of its bylaws and of the resolutions of its the board of directors of the Company and the Guarantors authorizing the matters contemplated by this Amendment and ratifying their respective obligations under the Note Agreement, Notes and other Note Documents, as applicable;
(f) an opinion of Counsel to the Company in form and substance reasonably satisfactory to the Purchasers, covering the due authorization, execution, delivery and enforceability of this Amendment, and no conflict with organizational documents, applicable laws or Material Credit Facilities and confirming that the Amendment does not affect the enforceability of the Note Agreement or the Notes; DMSLIBRARY01\30905179.v5
(g) to the extent that any duly authorized committee thereof, authorizing approval or consent is required under the AIG Purchase Agreement and/or the Credit Agreement for the execution, delivery and performance of the transactions contemplated by this Amendment, and certifying the name, title and true signature Company shall have delivered to the Purchasers evidence of each officer such written approval or consent from the requisite holders of the Borrower executing Indebtedness under the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment AIG Purchase Agreement and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestCredit Agreement; and
(gh) certified copies of all consentsother documents, approvals, authorizations, registrations certificates and filings and orders required or advisable instruments reasonably requested thereby with respect to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingthis Amendment.
Appears in 1 contract
Samples: Note Purchase Agreement (National Health Investors Inc)
Conditions to Effectiveness of this Amendment. It is understood This Amendment shall not become effective until, and agreed that this Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendmentwhen, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each every one of the following documentsconditions shall have been satisfied:
(a) executed counterparts to of this Amendment from Amendment, duly executed by the Borrower and each Lenderof the Banks, shall have been delivered to the Agent;
(b) an instrumenteach Bank shall have received a new promissory note substantially in the form attached as Exhibit 1.1-C to the Credit Agreement, payable to such Bank and in a maximum amount equal to such Bank's Commitment Amount as amended by this Amendment, duly executed by each Loan Partythe Borrower (as to such Bank, pursuant its "Amended Note"), which Amended Note shall constitute an amendment and restatement of the Existing Note payable to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementBank;
(c) the Agent shall have received from each Subsidiary a certificate Consent and Agreement of Subsidiary in the Secretary or Assistant Secretary form of Attachment 1 hereto (the Borrower, attaching "Subsidiary Agreements") duly completed and certifying copies of its bylaws and executed by such Subsidiary;
(d) the Agent shall have received a copy of the resolutions of its board the Board of directors or any duly authorized committee thereof, Directors of the Borrower authorizing the execution, delivery and performance by the Borrower of this Amendment, and certifying the namecertified by an officer thereof, title and true signature together with a certificate of each an officer of the Borrower executing certifying as to the incumbency and the true signatures of the officers authorized to execute this Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;; and
(e) a certificate, dated the Fifth Amendment Effective Date and signed by Agent shall have received the chief financial officer, treasurer or controller favorable opinion of the counsel to Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to covering the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party matters set forth in the Loan Documents are true Sections 3(a), 3(b) and correct in 3(c). Upon receipt of all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lendersforegoing, and covering such matters relating to (i) the Borrower, Agent shall notify the Amendment Borrower and the transactions contemplated therein as Banks that this Amendment has become effective, but the Administrative failure of the Agent or to give such notice shall not affect the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of prevent it from becoming effective, (ii) each Bank shall surrender to the transactions contemplated therebyBorrower such Bank's Existing Note, marked "renewed but not paid" or words to similar effect; and (iii) the unpaid principal balance outstanding under each Bank's Existing Note, and such consentsthe interest accrued but unpaid thereon, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingoutstanding under such Bank's Amended Note.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the first date (such date, the “Effective Second Amendment Closing Date”) when when:
(a) this Amendment shall have been executed and delivered by the Borrower, each Subsidiary Guarantor, each 2021 Refinancing Revolving Lender party hereto, Lenders collectively constituting the Required Lenders as of such date, each of the L/C Issuers and the Administrative Agent;
(b) the Administrative Agent shall have received all fees and other amounts due and payable to any Person on or prior to the Second Amendment Closing Date, including (i) such those fees payable for the account of each consenting Term Lender and Revolving Credit Lender as the Borrower has previously agreed to pay in writing on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), hereof and (ii) to the extent invoiced prior to the Second Amendment Closing Date, reimbursement or payment of its all reasonable and documented out-of-pocket costs expenses of the Administrative Agent (including the reasonable and documented legal fees and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King Xxxxx Xxxx & Spalding Xxxxxxxx LLP, special counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented ), in each case, to the Borrower at least two (2) days before the Effective Date unless otherwise agreed extent required to be reimbursed or paid by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each under any Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge AgreementDocument;
(c) a certificate at the time of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of immediately after giving effect to this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, shall have occurred and be continuing on such date;
(xd) after giving effect to the execution and delivery each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in Article V of the Credit Agreement or in any other Loan Documents are Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date hereof with the same effect as though made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that any representation and (z) since March 31, 2014, there shall have been no change which has had warranty that is qualified as to “materiality” or could reasonably be expected to have a “Material Adverse Effect” shall be true and correct in all respects);
(e) the Administrative Agent shall have received, at least three business days prior to the Second Amendment Closing Date, all documentation and other information related to the Borrower or any Guarantor required by regulatory authorizes under applicable “know your customer” and anti-money laundering rules and regulation including, without limitation, the Patriot Act, in each case to the extent requested by the Existing Agent from the Borrower in writing at least five business days prior to the Second Amendment Closing Date, including, to the extent the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), a certificate regarding beneficial ownership as required by the Beneficial Ownership Regulation with respect to the Borrower;
(f) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower stating that the conditions set forth in clauses (c) and (d) of this Section 2 have been satisfied and designating the 2021 Refinancing Revolving Commitments as Refinancing Revolving Credit Commitments;
(g) the Administrative Agent shall have received such certificates, copies of Organization Documents of the Loan Parties, resolutions or other action and incumbency certificates of Responsible Officers of 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 party on the Second Amendment Closing Date;
(h) the Administrative Agent shall have received a favorable written opinion of Xxxxxxxx & Xxxxx Xxxxx L.L.P.LLP, special counsel to for the Borrower, Borrower addressed to the Administrative Agent and each of the Lenders, and covering such matters relating Lenders party hereto in a form reasonably satisfactory to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestAgent; and
(gi) certified copies the accrued and unpaid Commitment Fees pursuant to Section 2.09(a) of all consentsthe Credit Agreement, approvalsLetter of Credit fees pursuant to Section 2.03(g) and interest, authorizationsin each case, registrations and filings and orders required or advisable in respect of the Existing Revolving Commitments shall have been paid to be made or obtained under any Requirement of Law, or by any Contractual Obligation the Administrative Agent in Dollars for the account of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingExisting Revolving Lender.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall will become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date first day that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documentsconditions has been satisfied:
(a) executed counterparts Lender receives One Hundred Thousand Dollars ($100,000) in cash from Borrower and/or RLE to this Amendment from be applied against the Obligations with the source of that cash being the funds currently held in the RLE Project Account; and
(b) Borrower and the other parties to each of the following documents (other than Lender) have executed and delivered each of the following documents to Lender in form and substance acceptable to Lender:
(i) this Amendment;
(ii) a directive to insurer instructing that any and all insurance payments related to the loss of control on the Xxxxxxxxx Prospect well drilling attempt be paid directly to the Project Account;
(iii) Second Amendment to Act of Mortgage, Assignment of Production and As-Extracted Collateral, Security Agreement and Financing Statement from Borrower in favor of Lender;
(biv) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement Omnibus Amendment from Borrower and the Pledge AgreementJOG in favor of Lender;
(cv) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the BorrowerGuaranty;
(dvi) a certified copy Subordination Agreement from JOG in favor of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectLender;
(evii) a certificateSubordination Agreement from Parent in favor of Lender;
(viii) that certain Letter Agreement regarding Lender’s consent to the reorganization of JOG between JOG, dated the Fifth Amendment Effective Date Borrower, Rampant Lion Energy, LLC and signed by the chief financial officer, treasurer or controller Lender;
(ix) Certificate of the Managing Member of Borrower certifying as to Borrower’s Charter Documents, certifying that (w) no Default or Event of Default exists, authorizing resolutions and good standing;
(x) after giving effect Certificate of Secretary of JOG certifying as to the execution JOG’s Charter Documents, authorizing resolutions and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectgood standing;
(fxi) a favorable written legal opinion of Xxxxx Xxxxx L.L.P., Borrower’s counsel with respect to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as hereby, in form and substance satisfactory to Lender;
(xii) a payment instruction letter executed by Borrower, JOG, RLE and Xxxx Xxxxxx Bridge & Opportunity Fund, XX XX authorizing and directing Lender to apply all amounts currently held in the Administrative Agent or RLE Project Account against the Required Lenders shall reasonably requestObligations; and
(gxiii) certified copies any other document necessary or convenient in the opinion of all consents, approvals, authorizations, registrations and filings and orders required Lender or advisable its counsel to be made or obtained under any Requirement of Law, or give effect to the modifications to the Credit Agreement contemplated by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingAmendment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that The effectiveness of this Amendment shall become effective on the date not occur, until (the “Effective Date”i) when receipt by the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that of counterparts of this Amendment becomes effective duly executed by each of the Borrowers, Parent and the Administrative Agent and consented to by the Required Lenders and (ii) the Borrowers have satisfied each of the following conditions in a manner satisfactory to the Administrative Agent and the Lenders, and with respect to any condition requiring delivery of any agreement, certificate, document, or any of its affiliates in connection with this Amendmentinstrument, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder Borrowers shall have furnished to the Administrative Agent sufficient copies of any such agreement, certificate, document, or instrument for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel distribution to the Administrative Agent) for which invoices Lenders (including estimated expenses) have been presented to such date, the Borrower at least two (2) days before the “Amendment Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:Date”).
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying The Borrowers shall furnish copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, approved Resolutions authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment Loan Documents to which the Borrowers are a party, and, with respect to the Dutch Borrower and the funding Norwegian Borrower authorizing borrowings and requests for issuance of Facility LCs hereunder, each certified by the secretary of such Obligated Party as being true, correct, and complete.
(b) The Dutch Borrower and the Norwegian Borrower shall furnish an incumbency certificate, executed by the secretary of the Term Loans on Norwegian Borrower and by an authorized signatory of the Fifth Amendment Effective DateDutch Borrower, neither which shall identify by name and title and bear the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within signatures of the meaning Authorized Officers and any other officers of such term as defined in § 101 of Title 11 of the United States Code, as amended from time Obligated Party authorized to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in sign the Loan Documents to which such Obligated Party is a party and authorized to request Credit Extensions on behalf of the Dutch Borrower and Norwegian Borrower, upon which certificate the Agents, the LC Issuer, the Acceptance Lender, and the Lenders shall be entitled to rely until informed of any change in writing by such Borrowers.
(c) The Dutch Borrower and the Norwegian Borrower shall furnish a certificate, signed by the chief financial officer of the Parent of the Dutch Borrower and the Norwegian Borrower, specifying the deposit accounts which are true the respective Funding Accounts of the Dutch Borrower and correct the Norwegian Borrower.
(d) The Lenders shall have received such opinions of counsel as any Lender shall reasonably request, each such opinion to be in all material respectsa form, except scope, and substance reasonably satisfactory to the extent Lenders and their respective counsel.
(e) The Dutch Borrower and the Norwegian Borrower shall furnish:
(i) acknowledgment copies, verification statements, or certified copies of proper financing statements or similar filings, duly filed on or before the Amendment Effective Date that such representations and warranties specifically refer the Administrative Agent may deem necessary or reasonably desirable in order to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectperfect and/or continue the Agents’ Liens granted by the Norwegian Borrower;
(fii) a favorable written opinion executed copies of Xxxxx Xxxxx L.L.P.the Guaranty Agreements, counsel Security Agreements and all other security documents (the “Security Documents”) the Administrative Agent may deem necessary or reasonably desirable in order to secure the obligations and liabilities of the Norwegian Borrower;
(A) all certificates evidencing the Capital Stock required to be pledged pursuant to the Security Agreements and, in respect of the Dutch Borrower, addressed an executed copy of a notarial deed of the pledge of 65% of the shares in the capital of the Dutch Borrower, by and between the parent of the Dutch Borrower, as pledgor, the Collateral Agent, as pledgee, and the Dutch Borrower and (B) each promissory note (if any) pledged to the Administrative Agent and each of the Lenders, and covering such matters relating pursuant to the Borrower, Security Documents endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingpledgor thereof.
Appears in 1 contract
Samples: Credit Agreement (K2 Inc)
Conditions to Effectiveness of this Amendment. It is understood This Amendment shall not become effective until, and agreed that this Amendment shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendmentwhen, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each every one of the following documentsconditions shall have been satisfied:
(a) executed counterparts to of this Amendment from Amendment, duly executed by the Borrower and each Lenderof the Banks, shall have been delivered to the Agent;
(b) an instrument, executed Revolving Notes (the "New Notes") in the form of Exhibit 1.1C shall have been received by the Agent on behalf of each Loan Party, pursuant to which such Loan Party reaffirms its obligations under of the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;Banks.
(c) a certificate the Agent shall have received from each of the Secretary or Assistant Secretary Guarantors, other than PRIMA, Norstan International and Norstan-UK, a Consent and Agreement of Guarantor in the Borrowerform of Attachment 1 hereto (the "Guarantor Agreements") duly completed and executed by such Guarantor;
(d) the Agent shall have received from each of PRIMA, attaching Norstan International and certifying copies Norstan-UK a duly executed Guaranty in the form of its bylaws and Exhibit A hereto;
(e) the Agent shall have received a copy of the resolutions of its board the Board of directors or any duly authorized committee thereof, Directors of the Borrower authorizing the execution, delivery and performance by the Borrower of this Amendment, and certifying certified by its Secretary or an Assistant Secretary, together with a certificate of the name, title and true signature of each officer Secretary or an Assistant Secretary of the Borrower executing certifying as to the incumbency and the true signatures of the officers authorized to execute this Amendment on behalf of the Borrower;
(df) a certified copy of the corporate resolution of each of PRIMA, Norstan International and Norstan-UK authorizing the execution, delivery and performance of its respective Guaranty;
(g) an incumbency certificate for each of incorporation PRIMA, Norstan International and Norstan-UK showing the names and titles and bearing the signatures of its officers authorized to execute its respective Guaranty, certified as of the Borrower, together with certificates of good standing or existence, as may be available from Closing Date by the Secretary or an Assistant Secretary of State PRIMA, Norstan International and Norstan-UK, respectively;
(h) a copy of the Articles of Incorporation of each of PRIMA, Norstan International and Norstan-UK with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of organization its incorporation as of a date not more than ten days prior to the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectdate hereof;
(ei) a certificatecertificate of good standing for each of PRIMA, dated Norstan International and Norstan-UK in the Fifth Amendment Effective Date and signed jurisdiction of its incorporation, certified by the chief financial officer, treasurer or controller appropriate governmental officials as of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect a date not more than ten days prior to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effecthereof;
(fj) a favorable written opinion copy of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and bylaws of each of PRIMA, Norstan International and Norstan-UK, certified as of the LendersClosing Date by the Secretary or an Assistant Secretary of PRIMA, Norstan International and covering such matters relating to the BorrowerNorstan-UK, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrespectively; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Samples: Credit Agreement (Norstan Inc)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on upon the satisfaction of the following conditions precedent concurrently or prior to the Advance of (or conversion into) the Term Loan D Loans (the date (of such satisfaction, the “Amendment Effective Date”):
(a) when the The Administrative Agent shall have received counterparts of (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to duly executed and delivered by each of the Administrative Agent or any Parent, the Borrower, each of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower Subsidiary Guarantors and the Administrative Agent, and (iiiii) each of consents, in the following documents:
form set forth hereto as Annex A (a) each, a “Lender Consent”), executed counterparts to this Amendment from by the Borrower Lenders constituting the Required Lenders and each Lender;Lender holding a Term Loan D Commitment.
(b) an instrument, executed by each Loan Party, pursuant Prior to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery this Amendment, each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are shall be true and correct in all material respectsrespects on and as of the date hereof as if made on and as of such date, except provided that the references to the extent that Credit Agreement, the Parent Security Agreement or the Parent Pledge Agreement in such representations and warranties specifically shall be deemed to refer to an earlier date and the Credit Agreement, the Parent Security Agreement or the Parent Pledge Agreement, respectively, as amended pursuant to this Amendment.
(zc) since March 31, 2014, there No Default or Event of Default shall have been no change which has had or could reasonably occurred and be expected continuing on the date hereof both before and after giving effect to the transactions contemplated hereby.
(d) The Borrower shall have a Material Adverse Effect;paid to the Administrative Agent all outstanding fees, costs and expenses owing to the Administrative Agent.
(e) The Term Loan D Loans shall refinance in full the aggregate principal amount of the Term Loan C Loans outstanding on the Amendment Effective Date.
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to Co-Issuer shall have entered into the Borrower, addressed Co-Issuer Guaranty and the Co-Issuer Security Agreement.
(g) The Parent shall have pledged to the Administrative Agent and each all of its interest in the Lenders, and covering Co-Issuer’s capital stock.
(h) The Administrative Agent shall have received such matters relating to the Borrower, the Amendment and the transactions contemplated therein additional documentation as the Administrative Agent or the Required Lenders shall may reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingrequire.
Appears in 1 contract
Samples: Credit Agreement (CBD Media LLC)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) the fees set forth in that Fee Letter dated as of June 14, 2012 among the Borrower, the Administrative Agent and SunTrust Rxxxxxxx Xxxxxxxx, Inc., (ii) such other fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (iiiii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices ), (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(aiv) executed counterparts to this Amendment from the Borrower and each Lender;
the Lenders, (b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(cv) a certificate of the Secretary or Assistant Secretary of the Borrower, (A) attaching a certificate of good standing or existence of a recent date, as may be available from the Secretary of State of the jurisdiction of incorporation of the Borrower,(B) attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this the Amendment, and (C) certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf and (D) attaching and certifying copies of the Borrower;
(d) a certified copy of the certificate articles of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(fvi) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing.
Appears in 1 contract
Samples: Treasury Secured Revolving Credit Agreement (NGP Capital Resources Co)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “First Amendment Effective Date”):
(a) when The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the Parent Borrower and each Lender.
(b) The Loan Parties shall have executed and delivered to the Administrative Agent a guarantee and collateral acknowledgment in the form attached hereto as Exhibit D with respect to the guarantees and Liens created under the Loan Documents.
(c) The Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable and documented out-of-pocket fees and expenses of legal counsel), on or before the First Amendment Effective Date.
(d) The Administrative Agent shall have received the legal opinion of Xxxxx Lovells LLP, counsel to each of the Parent Borrower and the New Borrower (as defined below). Such legal opinion shall cover such matters incidental to the transactions contemplated by this Amendment as the Administrative Agent may reasonably require.
(e) The Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the each Borrower, attaching dated the date hereof, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofattachments, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of including the certificate of incorporation of each Borrower certified by the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State relevant authority of the jurisdiction of organization of each Borrower or a certification that such documents have not been amended since such documents were previously delivered to the Administrative Agent and (ii) a long-form good standing certificate for each Borrower and each other from the applicable jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;of organization.
(ef) a certificate, dated the Fifth Immediately prior to and after giving effect to this Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (wi) no Default or Event of Default exists, shall have occurred and be continuing and (xii) after giving effect to the execution and delivery each of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each made by any Loan Party set forth in or pursuant to the Loan Documents are shall be true and correct in all material respects, respects on and as of such date as if made on and as of such date (except to the extent that such any representations and warranties specifically refer which expressly relate to an earlier date shall be true and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion correct in all material respects as of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; andearlier date).
(g) certified copies The Administrative Agent shall have received a certificate signed by a duly authorized officer of the Parent Borrower certifying that the conditions specified in clause (f) of this Section 3 have been satisfied as of the First Amendment Effective Date.
(h) The Administrative agent shall have received (a) a Notice of Designation designating Colony Capital Investment Holdco, LLC (the “New Borrower”) as a Subsidiary Borrower, (b) a Subsidiary Borrower Joinder Agreement signed by a duly authorized officer of the New Borrower and (c) a certificate signed by a duly authorized officer of the New Borrower certifying that the conditions specified in Section 3 of the Subsidiary Borrower Joinder Agreement have been satisfied.
(i) The Lenders shall have received, to the extent requested by the Administrative Agent in writing at least ten (10) days prior to the Closing Date, all consentsdocumentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Partyincluding the USA PATRIOT Act, in connection with each case at least five (5) days prior to the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingClosing Date.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on as of the date the following conditions precedent have been satisfied (the “Effective Date”):
(a) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation duly executed and delivered by the fees payable pursuant to Company, the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to Issuer, the Swing Lender and the Administrative Agent for the account of each Incremental Lender)Agent, (ii) reimbursement or payment New Revolving Credit Lender Addenda, in the form attached hereto as Annex A (the “New Revolving Credit Lender Addenda”), (iii) Extending Term Lender Consents, in the form attached hereto as Annex B (the “Extending Term Lender Consents”), and Non-Extending Term Lender Consents, in the form attached hereto as Annex C (the “Non-Extending Term Lender Consents”), in each case, duly executed and delivered by the Consenting Lenders constituting the Requisite Lenders (after giving effect to the termination of its reasonable out-of-pocket costs the Revolving Credit Commitments of the Terminated Revolving Credit Lenders) and expenses incurred (iv) a Consent and Reaffirmation, in connection with this Amendment or the Credit Agreement form attached hereto as Annex D, duly executed and delivered by the Company and each Guarantor;
(including reasonable fees, charges and disbursements b) the Administrative Agent shall have received an opinion of King O’Melveny & Spalding Xxxxx LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before Loan Parties, dated as of the Effective Date unless otherwise agreed by the Borrower and addressed to the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement Lenders and the Pledge AgreementIssuers, in form and substance reasonably satisfactory to the Administrative Agent;
(c) the Administrative Agent shall have received (i) a copy of the certificate of incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Delaware, together with a certificate of such official attesting to the Secretary or Assistant good standing of the Company, and (ii) a certificate from the Secretary of the BorrowerCompany, attaching dated as of the Effective Date and in form and substance reasonably satisfactory to the Administrative Agent, certifying copies (A) the names and true signatures of its bylaws each officer of the Company that has been authorized to execute and deliver this Amendment and any other document required hereunder to be executed and delivered by or on behalf of the Company, (B) the by-laws of the Company as in effect on the date of such certification, (C) the resolutions of its board the Company’s Board of directors or any duly authorized committee thereof, Directors approving and authorizing the execution, delivery and performance of this Amendment, Amendment and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(dD) a certified copy of that there have been no changes in the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available Company from the Secretary certificate of State incorporation delivered pursuant to clause (i) above;
(d) the Company shall have paid to the Administrative Agent, (i) for the ratable benefit of each Term Loan Lender that has executed and delivered either an Extending Term Lender Consent or Non-Extending Term Lender Consent, to the Administrative Agent on or prior to the Consent Due Date, an amendment fee in an amount equal to 0.10% of the jurisdiction outstanding principal amount of organization such Lender’s Original Term Loans, respectively, immediately prior to the Effective Date and (ii) such additional fees, the amount and dates of payment of which are embodied in those certain fee letters between the Borrower Company and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectArrangers;
(e) a certificatethe Administrative Agent shall have received, dated for the Fifth Amendment ratable benefit of the Revolving Credit Lenders immediately prior to the Effective Date (including the Terminated Revolving Credit Lenders), (i) payment in full of all Revolving Loans (as defined in the Credit Agreement immediately prior to the Effective Date) outstanding immediately prior to the Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (yii) all other representations accrued and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectunpaid interest with respect thereto;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each shall have received, for the ratable benefit of the Lenders, and covering such matters relating Revolving Credit Lenders immediately prior to the BorrowerEffective Date (including the Terminated Revolving Credit Lenders), (i) all accrued and unpaid Unused Commitment Fees to but excluding the Amendment Effective Date (whether or not otherwise due and payable) and (ii) all accrued and unpaid fees with respect to each outstanding Letter of Credit pursuant to Section 2.12(b)(ii) of the transactions contemplated therein as Credit Agreement to but excluding the Effective Date (whether or not otherwise due and payable);
(g) the Administrative Agent shall have received, duly executed and delivered by the Company and the Existing Issuer, a copy of a letter which sets forth the cash collateralization of the obligations of the Company to the Existing Issuer on or prior to the Required Lenders Effective Date, in an amount at least equal to the aggregate face amount of outstanding letters of credit set forth on Schedule 2.4 (Existing Letters of Credit);
(h) all Revolving Credit Commitments under the Original Revolving Credit Facility shall reasonably requesthave been terminated;
(i) the Company shall have paid all fees and expenses (including, to the extent invoiced, the reasonable fees and expenses of Weil, Gotshal & Xxxxxx LLP) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment; and
(gj) certified copies of all consentsthe Administrative Agent shall have received, approvalson or prior to the Effective Date, authorizations, registrations and filings and orders required or advisable Notes to be made or obtained under any Requirement of Law, or the extent requested by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment New Revolving Credit Lender or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingExtending Term Lender.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall --------------------------------------------- become effective on the date (the “Effective Date”) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any counterparts of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed duly executed by the Borrower Borrowers, the Required Lenders and the Administrative Agentany other Lender whose Commitment Amount is increased by operation of this Amendment, and (iii) each of provided the following documentsconditions are satisfied:
(a) executed counterparts Before and after giving effect to this Amendment from Amendment, the Borrower representations and each Lender;warranties of the Borrowers in Section 3 of the Credit Agreement, Section 5 of the Pledge and Security Agreement and Section 4 of the Servicing Security Agreement, and of NCFC in Section 15 of the Guaranty shall be true and correct as though made on the date hereof, except for changes that are permitted by the terms of the Credit Agreement.
(b) an instrumentBefore and after giving effect to this Amendment, no Event of Default and no Unmatured Event of Default shall have occurred and be continuing.
(c) No material adverse change in the business, assets, financial condition or prospects of the Borrowers or NCFC shall have occurred since December 31, 2001.
(d) The Agent shall have received the following, each duly executed or certified, as the case may be, and dated as of the date of delivery thereof:
(i) a new Note in favor of each Lender whose Commitment Amount is increased by operation of this Amendment, in the amount of such increased Commitment Amount, each Loan Party, pursuant to of which such Loan Party reaffirms its obligations Notes shall constitute "Notes" under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Credit Agreement;
(cii) a certificate copy of resolutions of the Board of Directors of each Borrower, certified by its respective Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereofSecretary, authorizing or ratifying the execution, delivery and performance of this Amendment, the new Notes referred to in the forgoing clause (i) and certifying any other documents to be executed by any Borrower in connection with this Amendment (collectively, the name, title and true signature of each officer of the Borrower executing the "Amendment on behalf of the BorrowerDocuments");
(diii) a certified copy of the certificate of incorporation any amendment or restatement of the Borrower, together with certificates Articles of good standing Incorporation or existence, as may be available from the Secretary By-laws of State any Borrower made or entered following the date of the jurisdiction of organization of most recent certified copies thereof furnished to the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectLenders;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(giv) certified copies of all consentsdocuments evidencing any necessary corporate action, approvals, authorizations, registrations and filings and orders required consent or advisable governmental or regulatory approval (if any) with respect to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any Documents;
(v) a Reaffirmation of the transactions contemplated therebyNCFC Guaranty duly executed by NCFC; and
(vi) such other documents, instruments, opinions and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding approvals as the Amendment shall be ongoingAgent may reasonably request.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood This Amendment and agreed that this Amendment the amendments contained herein shall become effective on the date (the “Second Amendment Effective Date”) when each of the conditions set forth below shall have been fulfilled to the satisfaction of the Administrative Agent:
(a) The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered on behalf of the Borrower, the other Loan Parties, the Administrative Agent and the Lenders party hereto, the Supplement and Joinder, duly executed and delivered on behalf of the Borrower, the other Loan Parties, the Administrative Agent and the Lenders, as well as allonges to the Revolving Credit Notes or amended and restated Revolving Credit Notes and/or new Revolving Credit Note and/or new Term Note, in each case, as required by the Supplement and Joinder, and an amended and restated Swingline Note, duly executed and delivered on behalf of the Borrower, and in the face amount of the Swingline Commitment, as increased hereby (iall of the foregoing, collectively, the “Modification Documents”).
(b) such fees as No event shall have occurred and be continuing that constitutes an Event of Default, or that would constitute an Event of Default but for the requirement that notice be given or that a period of time elapse, or both.
(c) All representations and warranties of the Borrower has previously agreed contained in the Credit Agreement, and all representations and warranties of each other Loan Party in each Loan Document to pay which it is a party, shall be true and correct in all material respects (or, if qualified by materiality, in all respects) at the Second Amendment Effective Date as if made on and as of such Second Amendment Effective Date, except that (a) any representation or prior warranty relating to any financial statements shall be deemed to be applicable to the date that this Amendment becomes effective financial statements most recently delivered to the Administrative Agent in accordance with the provisions of the Loan Documents and (b) each other representation or warranty expressly stated to be made as of the Closing Date shall not be deemed to have been repeated as of any of its affiliates in connection with this Amendment, including without limitation date other than the fees payable pursuant to the Fifth Amendment Fee Letter Closing Date.
(including without limitation fees payable thereunder d) The Borrower shall have delivered to the Administrative Agent for the account (1) certified copies of each Incremental Lender), (ii) reimbursement or payment evidence of its reasonable out-of-pocket costs all corporate and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed company actions taken by the Borrower and the Administrative Agent, other Loan Parties to authorize the execution and (iii) each delivery of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
other Modification Documents, (c2) a certified copies of any amendments to the articles or certificate of the Secretary incorporation, formation or Assistant Secretary of the Borrowerorganization, attaching and certifying copies of its bylaws and of the resolutions of its board of directors bylaws, partnership certificate or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization operating agreement of the Borrower and each other jurisdiction where Loan Party since the date of the Credit Agreement or, as applicable, the joinder of a Loan Party to the Loan Documents, (3) a certificate of incumbency for the officers or other authorized agents, members or partners of the Borrower is required to be qualified to do business and each other Loan Party executing this Amendment, the other Modification Documents and the other Loan Documents related hereto and (4) such additional supporting documents as a foreign corporation where the failure to be so qualified could Administrative Agent or counsel for the Administrative Agent reasonably be expected to have a Material Adverse Effect;may request.
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer The Administrative Agent (or controller of the Borrower, certifying that (wits counsel) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) received a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, this Amendment, the Amendment other Modification Documents and the other documents required hereby and the transactions contemplated herein and therein as the Administrative Agent or the Required Lenders shall reasonably request; and.
(f) The Administrative Agent (or its counsel) shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted by Section 7.2 of the Credit Agreement or have been or will be contemporaneously released or terminated.
(g) certified copies All documents delivered pursuant to this Amendment and the other Modification Documents must be of form and substance satisfactory to the Administrative Agent and its counsel, and all consents, approvals, authorizations, registrations legal matters incident to this Amendment and filings and orders required or advisable the other Modification Documents must be satisfactory to be made or obtained under any Requirement the Administrative Agent’s counsel.
(h) Payment by the Borrower in immediately available funds of Law, or by any Contractual Obligation of each Loan Party, the fees agreed to in the fee letter entered into in connection with the execution, delivery, performance, validity Additional Commitment Amount and enforceability the fees and expenses required to be paid by Section 11 of this Amendment or any Amendment.
(i) Satisfaction of the transactions contemplated therebyconditions precedent to effectiveness of the Supplement and Joinder, in accordance with the terms and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingconditions set forth therein.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Liberty Tax, Inc.)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Loan Parties hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date Borrowers shall have no rights under this Amendment, until (the “Effective Date”a) when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement otherwise outstanding (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists), (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(fii) a favorable written opinion of Xxxxx Xxxxx L.L.P.Kxxxxxxxxx Xxxxxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the this Amendment and the transactions contemplated therein herein as the Administrative Agent or the Required Lenders shall reasonably request; and
, each in form and substance reasonably satisfactory to the Administrative Agent, (giii) certified copies a certificate of all consents, approvals, authorizations, registrations and filings and orders required the Secretary or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation Assistant Secretary of each Loan Party, certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of this Amendment and certifying the name, title and true signature of each officer of such Loan Party executing this Amendment, (iv) executed counterparts to this Amendment from the Borrower, each of the Guarantors and the Required Lenders and (v) duly executed Revolving Credit Notes executed by the Borrower payable to such Lender; and duly executed Notes executed by the Co-Borrower payable to such Lender and (b) the Borrowers shall have prepaid the Loans in their entirety and, to the extent the Borrowers elect to do so and subject to the conditions specified in Article II, the Borrowers shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to this Amendment, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to this Amendment, and effective upon the effectiveness of this Amendment, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments. The Administrative Agent, the Lenders and the Borrowers hereby agree that the prepayment referred to in clause (b) of the previous sentence shall be without premium or penalty to the Borrowers and no compensation under Section 2.18 of the Credit Agreement shall be required to be paid by Borrowers to any of the Lenders or Administrative Agent in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingprepayment.
Appears in 1 contract
Conditions to Effectiveness of this Amendment. It is understood and agreed that The effectiveness of this Amendment shall become effective on is subject to the satisfaction (or waiver in writing by the Administrative Agent (at the direction of the Required Lenders)) of the following conditions precedent (the date (on which such conditions are satisfied or waived being referred to herein as the “First Amendment Effective Date”): (a) when Each of the Administrative Agent following documents, which shall have received (i) such fees as be dated the Borrower has previously agreed to pay on or prior to the date that this First Amendment becomes effective to the Administrative Agent or any of its affiliates Effective Date and in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs form and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel substance satisfactory to the Administrative Agent:
(i) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed This Amendment, duly executed and delivered by the Borrower and the Administrative Agent, and (iii) each of the following documents:Borrowers, the Guarantors and the Lenders (which together constitute the Required Lenders).
(aii) executed counterparts to this Amendment from Certified copies of the Borrower charter and each Lender;
(b) an instrument, executed by by-laws of each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its the board of directors (or any duly authorized committee thereof, equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of this Amendment, and all documents evidencing other - 2 - WEIL:\97457544\6\35899.0596
(iii) A certificate of the secretary or an assistant secretary (or equivalent officer) of each Loan Party certifying the name, title names and true signature signatures of the officers of each Loan Party authorized to sign this Amendment and any other documents to be delivered hereunder.
(iv) A favorable opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Loan Parties, in form and substance reasonably accepted to the Administrative Agent and Lenders and covering such customary matters relating hereto as any Lender, through the Administrative Agent, may reasonably request.
(v) A certificate of an officer or any authorized person of Livent confirming compliance with the conditions set forth in Sections 4(c) and 4(d).
(b) Confirmation that the Borrowers have paid (i) a consent fee to the Administrative Agent, for the account of each applicable Lender (including Citibank, N.A) consenting to the Amendment (each, a “Consenting Lender”), in an amount equal to 0.15% of such Consenting Lender’s Commitment as of the Borrower executing First Amendment Effective Date, due and payable on or before the First Amendment on behalf of the Borrower;
Effective Date; (dii) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each all other jurisdiction where the Borrower is fees required to be qualified to do business as a foreign corporation where paid on or before the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth First Amendment Effective Date and signed by the chief financial officer, treasurer or controller (iii) all expenses of the BorrowerAdministrative Agent and the Lenders (including the fees and expenses of counsel to the Administrative Agent) that are required to be paid pursuant to the terms of the Amended Credit Agreement.
(c) Immediately prior to and after giving effect to the terms, certifying that (w) conditions, and provisions of this Amendment, no Default or Event of Default exists, .
(xd) after giving effect to the execution The representations and delivery of the warranties contained in this Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined other Loan Documents are correct in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in all material respects (except any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents that are qualified by materiality, which shall be true and correct in all material respects) with the same effect as though made on and as of such date, except other than any such representations or warranties that, by their terms, refer to the extent that an earlier date, such representations and warranties specifically refer to an are true and correct as of such earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingdate.
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Conditions to Effectiveness of this Amendment. It Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective on effective, and the date (the “Effective Date”) when Borrower shall have no rights under this Amendment, until the Administrative Agent shall have received the following:
(q) executed counterparts of this Amendment from the Borrower, Holdings and the Lenders; together with any new or replacement Notes requested by the Lenders as executed and delivered by the Borrower,
(r) executed legal opinions of (1) Xxxxxx & Bird, counsel to Holdings, and (2) Xxxxxxxx and Wedge, counsel to the Borrower, in form and substance satisfactory to the Administrative Agent and the Required Lenders;
(s) duly executed certificates of the Secretary or an Assistant Secretary of the Borrower and Holdings containing specimen signatures of the persons authorized to execute this Amendment on behalf of the Borrower and Holdings, and any other documents provided for herein, together with (x) copies of resolutions of the Boards of Directors of the Borrower and Holdings authorizing the execution and delivery of this Amendment, (y) copies of the Borrower’s and Holdings’ articles or certificate of incorporation, by-laws, and other governing or organizational documents, and (z) a certificate of good standing from the Office of the Secretary of State of the state of organization of each of the Borrower and Holdings; and
(i) an upfront fee in the amount of 0.10% of the increase in the Total Revolving Commitments pursuant to this Amendment, to be applied pro rata among the Lenders based on the increase in the Revolving Commitment of each Lender, (ii) such other fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this AmendmentAmendment pursuant that certain agreement dated September 3, including without limitation 2004 among SunTrust Capital Markets, Inc., the fees payable pursuant to the Fifth Amendment Fee Letter Borrower and Holdings, and (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (iiiii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each of the following documents:
(a) executed counterparts to this Amendment from the Borrower and each Lender;
(b) an instrument, executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and certifying copies of its bylaws and of the resolutions of its board of directors or any duly authorized committee thereof, authorizing the execution, delivery and performance of this Amendment, and certifying the name, title and true signature of each officer of the Borrower executing the Amendment on behalf of the Borrower;
(d) a certified copy of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(e) a certificate, dated the Fifth Amendment Effective Date and signed by the chief financial officer, treasurer or controller of the Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect to the execution and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; and
(g) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoing).
Appears in 1 contract
Samples: Credit Agreement (Agl Resources Inc)
Conditions to Effectiveness of this Amendment. It is understood and agreed that this This Amendment shall become effective on the date (the “Effective Date”) as of June 29, 2001 when the Administrative Agent shall have received (i) such fees as the Borrower has previously agreed to pay on or prior to the date that this Amendment becomes effective to the Administrative Agent or any of its affiliates in connection with this Amendment, including without limitation the fees payable pursuant to the Fifth Amendment Fee Letter (including without limitation fees payable thereunder to the Administrative Agent for the account of each Incremental Lender), (ii) reimbursement or payment of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent) for which invoices (including estimated expenses) have been presented to the Borrower at least two (2) days before the Effective Date unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) each every one of the following documentsconditions shall have been satisfied:
(a) The Agent shall have received executed counterparts to of this Amendment from Amendment, duly executed by the Borrower and each Lender;of the Banks.
(b) The Agent shall have received an instrumentexecuted new Term A Note and a Term B Note for each Bank, properly completed for such Bank based upon its Term A Loan Commitment or Term B Loan Commitment, as applicable, and duly executed by each Loan Party, pursuant to which such Loan Party reaffirms its obligations under the Security Agreement, the Subsidiary Guaranty Agreement and the Pledge Agreement;Borrower.
(c) The Agent shall have received from the Guarantors a certificate Consent and Agreement of Guarantors in the Secretary or Assistant Secretary form of Exhibit F hereto (the Borrower, attaching "Guarantor Agreements") duly completed and certifying copies of its bylaws and executed by each Guarantor.
(d) The Agent shall have received a copy of the resolutions of its board the Board of directors or any duly authorized committee thereof, Directors of the Borrower authorizing the execution, delivery and performance by the Borrower of this Amendment, the new Term Note A and certifying Term Note B and the nameother documents to be executed by the Borrower in connection herewith, title and true signature together with a certificate of each an officer of the Borrower executing certifying as to the Amendment on behalf incumbency and the true signatures of the Borrower;
(d) a certified copy officers authorized to execute such documents and certifying that the Articles of the certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization Incorporation and Bylaws of the Borrower have not been amended or otherwise modified since true and each other jurisdiction where accurate copies of such documents were previously furnished to the Borrower is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Bank.
(e) a certificate, dated the Fifth Amendment Effective Date and signed by Agent shall have received the chief financial officer, treasurer or controller favorable opinion of the counsel to Borrower, certifying that (w) no Default or Event of Default exists, (x) after giving effect in form and substance acceptable to the execution Agent and delivery of the Amendment and the funding of the Term Loans on the Fifth Amendment Effective Date, neither the Borrower nor its Subsidiaries, taken as a whole, will be “insolvent”, within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, (y) all other representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date and (z) since March 31, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectcounsel;
(f) a favorable written opinion of Xxxxx Xxxxx L.L.P.The Agent shall have received the Subsequent Warrant Registration Agreement, counsel to duly executed by the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Amendment Borrower and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; andBanks.
(g) certified copies The Agent shall have received Subsequent Warrants, properly completed for each Bank and duly executed by the Borrower and issued to the Banks ratably in accordance with their Revolving Commitment Percentages, containing an exercise price equal to the closing price per share of the Borrower's common stock on the recognized exchange on which such stock is traded at the close of trading on the date of this Amendment.
(h) The Agent shall have received all certificates, instruments and other agreements representing or evidencing the Consulting Sale Collateral, together with duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Agent.
(i) The Agent shall have received for the ratable benefit of the Banks a non-refundable restructuring fee in the amount of $163,750 (the "Restructuring Fee").
(j) The Borrower shall have satisfied such other conditions as specified by the Agent, including payment of all consentsunpaid legal fees and expenses incurred by the Agent and the fees and expenses of Price Waterhouse Coopers, approvalsfinancial consultants to the Banks, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement in each case through the date of Law, or by any Contractual Obligation of each Loan Party, this Amendment in connection with the executionCredit Agreement, delivery, performance, validity this Amendment and enforceability any and all other documents to be executed and delivered by any party in connection with this Amendment (the "Amendment Documents"). Upon the effectiveness of this Amendment or any of amendment, the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders Agent shall be distribute the Restructuring Fee to the Banks ratably in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Amendment shall be ongoingaccordance with their Revolving Commitment Percentages.
Appears in 1 contract
Samples: Credit Agreement (Norstan Inc)
